


alan of Winco: im . 
* Partial Fuifillment of the i cnedata 
bee ments for the Degree of 








OF THE 1 Anontniocese. OF ae Pavu. 








The Administration of the 
Sacraments to Dying 


Non-Catholics 


A DISSERTATION 


Submitted to the Faculty of the School of Canon Law 
of the Catholic University of America in 
Partial Fulfillment of the Require- 
ments for the Degree of 


DOCTOR OF CANON LAW 





REV. JAMES IGNATIUS KING, J.C.L., 


OF THE ARCHDIOCESE OF ST. PAUL. 


1924. 


Nihil Obstat. 
THOMAS J. SHAHAN, S8.T.D., 
Censor Deputatus. 
Washingtonensi, Die XX VII Mail, 1924. 


Imprimatur. 
MICHAEL J. CURLEY, D.D., 
Archiepiscopus Baltimorensis. 
.Washingtonensi, Die XX VIT Maui, 1924. 


Copyright, 1924, by James I. King. 


TABLE OF CONTENTS. 


PAGE 
PRT RTACE MRE HOOT Se ah cence ede Fal ilara ene ee ae ON R aretolea ern Te Dr ht 
La TRLVEN Deh) OG © alts AUP ac Ore i HERR ay (LS CEBU ae EMA ba Rg A NN il 
I. Toe Terms, THEIR History AND SIGNIFICATION............0000- 1 
WPT AISLOL VY POLO ties GERI Sal, acts ana ns mie Wid cian munee nated Giant 1 
ea hem berinis: Nt ie COU vast, Von ee ou cian Ut oil )e ama ah ua spterng & 5 
PUM LIMINARY CONSIDERATIONS) i250 as aloid’e vase, oar ey etd adore ale ie ae 9 
MMM VES Mal ACI tie a Mate ain eee kic Nic de deta ale ae ce ener e 9 
2. The general attitude towards doubtful Baptism.............. 11 
3. Cases in which there is no possibility of a sign............. 13 
Coen Nem oacramienty Ole BaAptisin vlc) wciaig ue nua crane 14 
Olt Nem MACrainent, vOl mek Ctlaniceiuie o/b Wie aL tsar uh todo ee 20 
Del ueE  APTISMs OF) DYING. NON-CATHOLICS | oi) ce a eels weds 26 
1. The Baptism of dying infants of non-Catholics.............. 26 
Pa mbes CAnOnSt OT tnGr COCR ysl u Usds hibeayn Jer lita any 26 
OP ET MStOriCa i OUEVEY coe ccric eae ete ee use aie as Ge sate Malan 27 
PCL C WER TeSent boa Wil LAV iia! cee ara Ria wie mista ta) Jet sharin ae 32 
fii hey eundamentaler rinciplentian aoet setae tiy we 35 
Pee oattisinvataapnorinad! ACUitSad, 01sec Susie sie no stale teas 38 
3. The Baptism of dying normal non-Catholic adults........... 42 
Pe eETIA TLIC LO OUL VEY UG Meira rail iarame rs MeN AU Lia hae 43 
MO Be old eds re ul Be hy SU A Ae a eR SUSAR OE 48 
Pere eR ANCE AND! DYING NONACATHOLICS (icin. se ad Cake tcadoe ute 61 
1. Possibility of administering the Sacraments................. 61 

2. Historical Survey of the Relations of the Church to dying 
MEVOLICs VAN NSEMISITIATICSN irq idl UM ACs carrie Gal aed Wa Nn Deg 66 
BUCCI ET OSCTION PrN MIR th ok Pi Atak ora atts aarti id catty Urls Sie 82 
SATO C MT CCLIONS Sil He ER ha eta ere LAA uae RR Aue een 89 

V. Dyinc Non-CaTHOLICS AND THE SACRAMENTS OF Hoty VIATI- 
CUM, Extreme UNCTION, AND CONFIRMATION..............--- 92 
SME IS POL ICAL NIEV CV te aa Aire erated ce tea Lik ian ae eva alt i the 93 
PBN ITE CCOT LA LA Winks INRA rian alae aloe lows els Be ake eee ee 110 
MEET OUND mye wal was nar tC ae nly ced. tare Nate 111 
UC ORATLTTIC TAS sath Bel AR PT AH BOGUS EOE aOR: SOUND On ONIRY Ti 
VI. Dytnc Non-CaTHOLICS AND THE SACRAMENT OF MATRIMONY... 116 
ee eeercoPaitedito Ordinaries, uso. coco keke cade ban eet 116 
Sempre OTANTCH | tO EP TICSES H yin uted die alleisicials Sate'ecee ale wl da tans 116 
Deere OP UIUAT Vic GILCUIMStaliCeS. .i...5 32 «sds dis snd feta a banal dave 117 
RTS LEN Pie eos BUR geo als eri aie 4g AON Na Aa 117 
1) TEE GIROD Sp EAE elie, Ota OOM a a eA USER PNPM OTE RINEGD | 0) 117 
(b) Persons over whom the power can be exercised....... 119 
Pemernmextent. of the stactityaus wa inaskes Ur ae ew ee Lm eae 120 
(d) Requirements on the part of the subject.............. 121 
De PICeINOVAN Ole SUADCal ciiss au dite aivew ay ele Mek alae naka eh ater 122 
Ge ME TOC ALCIRET TONGS Mi thiaid Sak has fs Moet Id Sth Ode eT 123 


OLA EES a pe RI IRD ea OM aD i PO en Naa GRRE AES LCS OE Leah SRC 132 





a a Ew ts + 


? 4 


PREFACE 


The investigation of problems connected with the 
administration of the Sacraments is always of interest 
to a priest. At the time of approaching death, such 
ministrations become particularly useful and impor- 
tant. But at this moment precisely, when Providence 
and circumstances provide so many factors which 
speculation is unable to control, their discussion is 
most difficult. The purpose of the present study, then, 
has been practical rather than speculative, namely, to 
explain the canons in the Code which concern the 
administration of the Sacraments to dying non- 
Catholics. 

The term non-Catholic, as used in the subsequent 
pages, is perhaps employed in a somewhat arbitrary 
fashion. Our Lord Himself defined its limits in the 
words, ‘‘He that heareth you, heareth Me, and he that 
despiseth you, despiseth Me.’’ In short, all those who 
do not accept the teaching of the Church, either 
through ignorance or for any other reason, are con- 
sidered as falling within the scope of the present 
dissertation. 

The problems which arise in connection with minis- 
trations in the dying moments of such persons, as the 
writer realizes full well, are hardly capable of complete 
analysis in a treatment which is primarily canonical. 
Difficulties arise on every side, but the effort of the 
writer has been to honestly present what are his find- 
ings and convictions. If they are not altogether satis- 
factory, a novice can hardly be criticized too severely, 
where even the greatest theologians dispute. 


BIBLIOGRAPHY. 


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i. 


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GASPARRI, Carp. Petrus, Tractatus Canonmcus de Ma- 
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Hastines, Dictionary of the Apostolic Church, New 
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Hereve-Lecierce, Histoire des Conciles, Paris 1910. 
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Hereve-Taunton, History of the Councils of the 
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Hvurter, H., Theologiae Dogmaticae Compendium, 
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lll. 


KatscuTHaer, Iloannes, Theologia Dogmatica Catho- 
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1920. 






vit 





as rt 
4 





CHAPTER I. 
THE TERMS, THEIR HISTORY AND 
SIGNIFICATION. 


The history of the terms ‘‘heresy’’ and ‘‘schism’’ is 
of some little interest to the student of Canon Law. 
In the present chapter, however, the growth in content 
and the distinction between them are alone the object 
of investigation. The significance of the terms infidelis, 
haereticus, and schismaticus, which are found in the 
Code, is of considerable importance. 

1. History of the Terms. 

Christianity naturally, at least in the early period, 
used the terms in vogue at the time to express religious 
ideas. The two words hairesis and schisma are ob- 
viously Greek. ‘‘Heresy’’ in profane usage designated 
‘a philosophical school of thought,’’ and hence ‘‘a 
sect.’ ‘‘Schism’’ simply meant ‘‘a tear’’ or ‘‘a rent”’ 
in a garment.*® It is clear, then, that neither term had 
any religious signification, nor any note of opprobrium 
attached. The transition in Christian times was easy 
and natural. 

Writers in encyclopedias note a gradual growth in 
the connotation of the term ‘‘heresy’’ from ‘‘a party, 
or a school,’’ to a group of persons teaching and believ- 
ing positive error, which is absolutely condemned.‘ 
Finally, they find ‘‘heresy’’ as an organization—the 
Nicolaitians.© The word ‘‘schism”’ is used at first in 

1 Cfr. The Catholic Encyclopedia, articles “Heresy,” ‘“Schism.” 
Vacant-Manignot, Dictionnaire de Theologie Catholique. Vigouroux, 
Dictionnaire de la Bible. Non-Catholic: Hastings, Encyclopedia of 
Religion and Ethics; Hastings, Dictionary of the Apostolic Church. 

2 Cfr. Encyclopedia articles, and also etymological definitions given 
by Tertullian (De Prae. Haer., VI, MPL, 2, 18), and St. Jerome (/n 
Galat., VI, MPL,.26, 417, c.27, C. XXIV, q. 3). 

3 Cfr. Encyclopedia articles “Schism.” 


4 Cfr. Encyclopedia articles “Heresy.” 
5 Apocalypse, II, 6: cfr. I Jo., I, 1-3; II, 18; IV, 2-6. 


1 


2 THE TERMS 


the Sacred Scriptures in its primitive meaning,® but is 
considered by the same authorities to designate in the 
hands of St. Paul ‘‘a party strife within the Church, 
closely connected with heresy.’’* 

The Apostolic Fathers condemn error and its leaders 
in vivid terms.® It is clearly a very serious matter, but 
its members can be prayed for, and with diffieulty re- 
pent.® Heresy, in this age, seems to have comprised a 
main leader with a coterie of followers, without any 
very definite organization, but outside of the Church. 

The Fathers of the Apostolic Age sharply distin- 
guish from these a second class, characterized not by 
false belief, but disciplinary strife within the fold. It 
is evidently less serious, as repentance is much easier, 
and strong epithets are not applied. It is essentiallv 
a difference of opinion with authority, not necessarily 
on doctrinal grounds, the adherents of which unlike 
heretics remain within the Church.” 

In the Post-Apostolic Period, it would seem that or- 
ganization of heretical bodies as religious sects has 
become a reality, as St. Irenaeus says that their mem- 


6 Matthew IX, 16; Mark II, 21. 

? I Cor., I, 10; XI, 18. Cfr. Vigouroux, I. c., who states the Greek 
commentators did not find the distinction between heresy and schism in 
these passages; Vacant-Manignot, op.c., contends that they did. 

8 Cfr. Encyclopedia, l.c., Louis Motry, The Concept of Mortal 
Sin in Early Christianity, p. 17-19. 

9 Cfr. Motry, op. c., l.c., who opposes the sterner view taken by 
Rauschen, Eucharist and Penance, p. 183. Motry cites St. Ignatius 
Ad Philad., UII, 2, and refers to Dionysius of Corinth and Clement of 
Alexandria for the third century. St. Polycarp, dd Philad., VI, 1 (R. de 
J., No. 73), urges the presbyters to be merciful to all, and not severe 
in judgment, “scientes nos omnes debitores esse peccati.” The views of 
the Shepherd of Hermas are admittedly obscure, but he seems to call on 
heretics to repent (Hermas, III, Simil. 8, 6; MPG, 2, 975-978). Cfr. 
Otten, Manual of the History of Dogmas, p. 93-96. 

10 Didache, XV, 2 (R. de J., No. 9), warns the faithful to constitute 
“episcopos et diaconos,” with the added injunction “Ne igitur contemnatis 
eos.” Pope Clement, Ep. ad Cor., I, XLIX, 2 (R. de J., No. 26), LIV, 2 
(MPG, 1, 298-230), contains a description of schism, LVII, 2 (MPG, 
1, 324), uses a synonym. Ep. Barnabas, XIX, 12 (R. de J., No. 37), 
pas facies schisma. . . . Non accedes ad orationem in conscientia 
mala.” . 


THE TERMS 3 


bers should not offer oblations," Tertullian refers to 
the baptisms given by Marcion,” and Clement of Alex- 
andria argues that heretics have arid sacraments." 
The beginnings also of a distinction between the crime 
and the sin of heresy are evident, e.g., in St. Irenaeus," 
Tertullian, and Hippolytus.1* <A clear distinction in 
fact and treatment is drawn between the simple or 
‘‘mild,’’ and the agents of Satan or ‘‘fierce’’ by St. 
Irenaeus,” Tertullian,’® and Hippolytus.’® Probably 
this is the germ from which grew the theological dis- 
tinction between a formal and a material heretic. 

The difference between heresy and schism is not 
completely lost sight of by the writers of this period, 
such as St. Irenaeus,” and Hippolytus.” St. Cyprian 
expressly discussed the relation of the Church to 
schism, and clearly distinguished it from heresy, in 
combatting the Novations.?? His views are, however, 
very strict. The spirit of compromise between the 
Pope and St. Cyprian, although he seemed to be re- 
garded as at least a schismatic by the Pope, the canons 
concerning schism. in the first council of Arles (314), 
and the difference in treatment of the schismatical 
Miletans, as compared with the heretical Arians, by 
the first eeumenical council of Nice (325), show clearly 
that there was a practical distinction drawn between 
heresy and schism. 

11 Adv. Haer., IV, 18, 4 (R. de J., No. 234). Cfr. St. Ignatius, Ad 
Smy., VII, 1 (R. de J., No. 64), “Ab eucharistia et oratione abstinent,” 
which is obviously not yet performed outside the Christian community. 

12 Adv. Marcionem, IV, 9 (MPL, 2, 368). 

13 Stromata, I, 19 (MPG, 8, 813). 

14 Adv. Haer., I, 16, 3 (MPG, 7, 634-635). 

15 De Prae. Haer., XVI (MPL, 2, 29). 

16 Contra Noetum, I (MPG, 10, 803-806). 

17 Adv. Haer., IV, 26, 2 (MPG, 7, 1053) ; III, 15, 2 (MPG, 7, 886). 

18 Apol., XXXIX (MPL, 1, 471). 

19 Refutation, VIII, 1 and 12 (ANF, V, p. 117, 133-134). (This is, 
however, possibly not the work of this author.) 

20 Adv. Haer., IV, 33, 7 (R. de J., No. 242). 

21 Refutation, VIII, 1 and 12 (ANF, V, l.c.). 


22 De Unitate, III (CSEL, III, 1, p. 211-212) ; VI (CSEL, hL.c., p. 
213-214) ; VII-X (CSEL, l.c., p. 215-219). 


4 THE TERMS 


It was not, however, until the time of St. Augustine 
(354-430), St. Jerome (342-419), and St. Optatus 
(circa 370), that technical theological clarity of defini- 
tion and distinction became pronounced. Their for- 
mulae and distinctions were later incorporated in the 
Decretum Gratiam. St. Augustine gave the element 
of formal culpability a prominent place in his defini- 
tion of heresy: ‘‘Qui sententiam suam, quamvis falsam 
atque perversam, nulla pertinaci animositate defend- 
unt, praesertim quam non audacia suae praesumptionis 
pepererunt, sed a seductis atque in errorem lapsis 
parentibus acceperunt, quaerunt autem cauta sollici- 
tudine veritatem, corrigi parati, cum invenerint, nequa- 
quam sunt inter haereticos deputandi.’’?? St. Jerome’s 
is descriptive, but does not necessarily contain this ele- 
ment.?4 Schism is also clearly defined,?> and distin- 
guished from heresy,”® which St. Jerome expresses 
thus: ‘‘Inter haeresim et schisma hoc esse arbitramur, 
quod haeresis perversum dogma habeat; schisma 
propter episcopalem dissentionem ab Ecclesia separa- 
tur.’’”?? It is also clearly stated that heresy is more 
sinful than schism. 

The definitions of St. Augustine and St. Jerome are 
found in the Decretum Gratiani (1140-1150).2° In the 
Decretals of Gregory IX (1234) and the LInber Sextus 
of Boniface VIII (1298) the formal and external ele- 
ments are stressed, as the canonical rather than the 
theological definition are the main consideration. 

23; Ep. AUT Vii MPL aai5or cao) Coax) Vie, 

24 In ep. ad Titum, MPL, 26, 598; ad Gal., MPL, 26, 417. c. 27, 
CIXKIVs 0:3: 

25 St. Augustine, Contra Faustum, 20, 3. 

a ORE ey Augustine, Contra Cres. Don., 2, 3-7, MPL, 43, 471, cfr. 
Vacant- Manignot, op.c., ‘“Heresie”: De Bapt. contra Don., 5, 16, MPL, 
43, 186-187. St. Jerome, Jn Ep. ad Titum, 3, 10; c. 26) 'o, XXIV, 7 
St. Optatus, De sch. Don., 7, 3, 8; MPL, 11. 

27 In Ep. ad Titum, 26, 598, 


28 St. Optatus, De Schism. Don., 1, 3, 28, seat 11, 891. 
Bu Cir, cs.) 26; 27, 287-30, BivGs XXIV, 4. 3 


THE TERMS 5 


St. Thomas probably completed the process of exact- 
ness of distinction and definition of the terms. Schism 
is a lesser sin than heresy, because ‘‘haeresis se habet 
per additionem ad schisma: addit enim perversum 
dogma.’’*? Schism is of a twofold nature, in so far as: 
‘‘Heclesiae autem unitas in duobus attenditur; scilicet : 
in connexione membrorum Ecclesiae ad invicem, seu 
communicatione; et iterum in ordine omnium membro- 
rum Keclesiae ad unum caput, . . . et ideo schis- 
matici dicuntur, qui subesse renuunt summo Pontifici 
et qui membris Ecclesiae ei subjectis communicare 
recusant.’’®? These two types of schism are embraced! 
and distinguished in the definition of a schismatic 
found in the Code.** 

The definition of papal infallibility by the Vatican 
Council (1869) ** did not destroy the distinction be- 
tween heresy and schism. But since the denial of a 
dogma of faith involves heresy, schism often includes 
heresy.*® 
2. The Terms in the Code. 

There are three terms used in the Code, descriptive 
of the three general classes of non-Catholics—in our 
sense of the term—infidelis, haereticus, and schismat- 
ICUS. | 
1. Infidelis. 

The fundamental mark of division is the reception 
of Baptism. All those who do not possess this primary 
requisite fall under the general classname in/fidelis. 

30 cs.9, 10, X, De Haereticis, V, 7. (Throughout the title, the em- 
phasis is on the crime of heresy, and avoidance of contagion and penal- 
ties.) The second title of fifth book of the Liber Sextus of Boniface 
VIII contains twenty chapters De Haereticis in relation to the external 
forum, e.g., the duties of inquisitors, the goods of heretics, etc. 

31 Summa, II-II, q. xxxix, a.2, sed contra. 

32 Summa, II-II, q. xxxix, a.1, respondeo. 

33 Canon 1325, no. 2. 

34 Sess. IV, cap. 4. 


35 Vermeersch-Creusen, Epitome Juris Canonici (cited in the future 
chapters simply “Vermeersch-Creusen”), III, no. 513. 


6 THE TERMS 


As far as the administration of the Sacraments is con- 
cerned in the case of the dying, the fact that they are 
unbaptized is the essential consideration. They are 
neither members nor subjects of the Church. Many 
subdivisions could be introduced within this class, but 
the class and not the species is the primary concern. 

2. Haereticus. 

A heretic is one, who after the reception of Baptism, 
retaining the name of Christian, pertinaciously denies 
or doubts any of the truths that must be believed on 
divine or Catholic faith.®” 

This canon uses the term pertinax, and so the defini- 
tion is of a formal heretic. He must be baptized, and 
internally or externally deny or doubt one or more of 
the articles of faith, but continue a Christian in name. 
Denial and doubt can be indifferently mental states, 
and the subject pertinacious in his adherence, without 
necessarily giving external expression to it.28 Obvious- 
ly, this mental state will have to be externalized in some 
way, that cognizance be taken of it in the external 
forum. But there are canons in the Code which con- 
cern the internal forum, in which the term occurs.*°® 
The term pertinaciter, as used in the Constitution 
Apostolicae Sedis and the past definitions of heresy, 
has always, according to the common interpretation of 
theologians, involved elements of bad faith. 

The crime of heresy demands further conditions. A 
crime, in the sense of Canon Law, presupposes an ex- 
ternal and morally imputable violation of the law, to 
whieh an at least indeterminate canonical sanction is 
attached.*° This also postulates a formal mortal sin.* 

36 Canon 87. 

37 Canon 1325, no. 2. 

38 Blat, Commentarium, III, Pars IV, p. 242: contra, Vermeersch- 
Creusen, II, no. 660, who inserts the word externe in the definition. 

39 E.g., cs. 731, no. 2, 2314. 


40 Canon 2195, no. 1. 
41 Canon 2314, no. 2. 


THE TERMS fi 


But the crime involves the incurrence of the censure,** 
which in turn requires some contumacy.** The Church 
does not judge the occult in her external forum, so 
that all heretics and schismatics are, due to the very 
state in which they were, presumed to fall under the 
censure of canon 2314. It is clear that they are or have 
been in a public state of defection from the Church, and 
have performed acts in accordance with this state. The 
public forum of the Church can only judge, in the ab- 
sence of proof to the contrary, that the intention fol- 
lows the act. Hence, ignorance of the law is not pre- 
sumed,** and so long as the positive external violation 
of the law has taken place, regardless of purely inter- 
nal conditons, dolus is presumed in the external forum, 
until the contrary is proved.*® Hence, there is a prae- 
sumptio juris that the crime is there and is morally 
imputable. The excommunication in canon 2314 is juri- 
dically incurred ipso facto, until the contrary is proven. 

There is a difference betwen the sin and the crime of 
heresy. The latter always involves the former, but 
the contrary is not, true. Thus, the sin of heresy is 
committed by entertaining in bad faith a serious doubt 
regarding an article of faith, although this may be 
made manifest to others in no way whatsoever. As 
soon as the party gives expression to this, and the 
necessary contumacy is had, the canonical crime of 
heresy, with the consequent censure, is incurred. The 
present canon, then, embraces both the crime and the 
sin, the external and the internal state of formal 
heresy. 

These distinctions are of great importance in deter- 
mining the licit practice to be followed. But where 
there is question of the administration of the Sacra- 

42 Canon 2314, no. 1. 

43 Canon 2241, no. 1, cfr. 2242. 


44 Canon 2202, no. 1. 
45 Canon 2200, no. 2. 


8 THE TERMS 


ments, the widest possible use of the term is employed, 
embracing all heretics, ‘‘etiam bona fides petentibus,’’ 
guilty of the sin and the crime, or the sin alone, formal 
or material.4¢ This canon also gives additional 
ground for the distinction between formal and mate- 
rial heretics, although the process to be followed before 
admitting them to the Sacraments is the same. 

3. Schismaticus. 

A schismatic is also a baptized person. The precise 
point of difference is that he rejects the Supreme 
Pontiff or refuses to communicate with the members 
of the Church subject to him.**7 Schism violates the 
unity of the Church, either in the relation of the mem- 
bers to the head, or the connection of the members 
among themselves.** This section of the canon, then, is - 
an epitome of the teaching of the Angelic Doctor. If 
the schism involves a denial of the supremacy of juris- 
diction of the Pope, or his prerogative of infallibility, 
it is known as heretical schism. This is not, however, . 
necessarily the case, so that pure schism, which is not 
also heretical, is possible. 

As far as the administration of the Sacraments is 
concerned, the same distinctions as have been made in 
the case of a heretic can be applied.*® 

46 Canon 731, no. Fe 

47 Canon 1325, no. 

a8 (Ctr Blat) sop. ice “TIL Pars IV, p. 243; Vermeersch-Creusen, III, 


no. 513, 2. 
49 Cfr. canons 731, no. 2, 2314, no. 1. 


CHAPTER IT. 
PRELIMINARY CONSIDERATIONS. 


There are three fundamental problems that may 
confront the priest in his ministrations to dying non- 
Catholics, and which will underlie the concession or 
denial of the Sacraments in all cases. The answer 
that he can secure under the circumstances will to a 
large extent also determine which of the Sacraments 
ean be administered. They are: 

1. Who is an adult, in years and reason, relative 

to Baptism? 

2. What attitude must be adopted towards doubt- 
fully baptized non-Catholics in their dying 
moments? 

. How is the intention of the non-Catholic to be 
judged, and what action can be taken where 
there is destitution of the senses? 

These three questions are of much practical moment. 
Their discussion, however, in the abstract, is difficult, 
owing to the fact that the particular circumstances of 
each individual case differ. 

1. Who Is the Adult? 

In canon 88, par. 3, a general presumption is stated: 
expleto autem septenmo, usum rations habere prae- 
sumitur. But in the case of Baptism, the divine law 
demands that another test be applied: ‘‘He that 
believeth and is baptized, shall be saved: but he that 
believeth not shall be condemned.*’’ ‘he mission of the 
Church involves teaching: ‘‘Going therefore, teach ye 
all nations; baptizing them in the name of the Father, 
and of the Son, and of the Holy Ghost.’ Now, those 


Ww 


1 Mark XVI, 16. 
2 Matthew XXVIII, 19; cfr. Mark XVI, 15. 


9 


10 PRELIMINARY CONSIDERATIONS 


possessing the use of reason, regardless of their age, 

are capable of being taught, more or less fully in ac- 

cordance with their intellectual capacity. Hence, when 
there is question of Baptism, they are considered as 
adults who enjoy the use of reason.? They then are 

subject to the conditions laid down im canon 752. 

The general rule is that all, even though dying, must 
satisfy this canon, in so far as this is possible. But in 
cases of doubt, and where the circumstances do not per- 
mit of further investigation, the general presumption 
ean be a safe basis for action, namely, if the dying 
subject has not completed the seventh year, he is to 
be treated as an infant. 

The ultimate test, however, is not the age, but the 
presence or absence of the use of reason. This natu- 
rally flows from the necessity of fulfilling canon 752 
in so far as possible. Hence, there is an express excep- 
tion to the law, which may involve an extension or limi- 
tation of the age. When there is question of Baptism, 
canon 745 regulates: | 

1. Those who have not yet attained the use of rea- 
son, and among them are grouped amentes ab 
mfantia, no matter of what age, come under the 
name of parvuls or imfantes, according to the 

norm of canon 88, par. 3. 

. Adulti autem censentur, qui rationis usu fruun- 
tur; idque satis est ut suo quisque animi motu 
baptismum pctat et ad illum admittatur. 

The canon referred to states that an impubes, before 
the use of reason, is called infans seu puer vel parvulus 
and considered as not being sui compos; after the com- 
pletion of the seventh year, he is presumed to have the 
use of reason. Whoever is habitually destitute of the 
use of reason is assimilated to infantes.t The term 


Db 


3 Canon 745, no. 2. 
4 Canon 8§, no. 3. 


PRELIMINARY CONSIDERATIONS 11 


used by the canon in question censetur postulates pre- 
sumption and not absolute certainty, which indicates 
that even after the seventh year, the use of reason is 
only presumed. But presumption must yield to fact, 
and the specific case will have to be judged on this 
basis. Thus, an extension and contraction of the age 
are conceded: its presence, even below the age of seven, 
imposes the obligations, and its absence above this age 
withdraws the obligations.® 

The real difficulty arises in determining what is 
meant by the possession of the use of reason. It is ob- 
viously much less than is normally required for other 
actions. An Instruction of the Propaganda, April 17, 
1777, gives much practical guidance.® It directly con- 
eerns amentes and children of four or five years, who 
either certainly or doubifully perceive the principal 
mysteries of faith. The ultimate test given is, that 
they know the difference between good and evil, and be 
capable of sinning, (culpae se reos reddere valeant). 
2. The General Attitude Towards Doubtful Baptism. 

The growing disregard of the Sacrament of Baptism 
among the non-Catholics of the United States is an 
undeniable fact. It is likewise a fact of common obser- 
vation that the ministers of non-Catholic sects often- 
times neglect or fail to observe all the conditions re- 
quired for administering valid Baptism. European 
theologians have noted this, and some consider all 
Baptisms by non-Catholics in the United States as 
probably invalid. If this could be established as an 
actual custom, past responses of the Holy Office would 
admit it as a general presumption, capable of being 
acted on in the absence of proof to the contrary. But 
American theologians do not admit any such sweeping 


5 Capello, De Sacramentis, I, no. 153. 
6 Ad II, Coll., no. 522. 


12 PRELIMINARY CONSIDERATIONS 


statement.’ | 7 

An investigation must be made in each individual 
case, even in the circumstances of approaching death, 
in regard to both the fact and the validity of a possible 
previous Baptism.’ It is clear that the thoroughness 
of such an investigation must be largely determined by 
the circumstances. The testimony of one witness omnz 
exceptione maior, or the baptized person himself under 
oath, if he received Baptism as an adult, is sufficient to 
prove the fact of Baptism.’ With this proven, the priest 
must then proceed to investigate the validity of this 
previous Baptism, in which his own pastoral experi- 
ence will be the best guide. Two dogmas must be 
respected: first, valid Baptism must not be repeated ;*° 
and, secondly, anyone can baptize validly who satisfies 
the conditons.* Hence, the Code states the general law 


7 St. Alphonsus (Theologia Moralis, VI, no. 137), gives a general 
principle that all are to be rebaptized conditionally in case they have 
been previously baptized a praedicantibus. But this could not be done 
without investigation, as the Instruction of the Holy Office, November 
20, 1878, which is typical, requires investigation in each individual case 
(ASS, XI, p. 613-615). Some authors postulate an actual custom of 
invalidly baptizing among non-Catholics of the United States, e.g., 
Lehmkuhl (Theologia Moralis, II, note to no. 26, Ed. XII, 1914), Ver- 
meersch Creusen (II, no. 38), seems to admit Lehmkuhl’s view, Genicot 
(Institutiones Theologiae Moralis, II, p. 187, nota). Capello, De Sacra- 
mentis, I, no. 174), notes that this view “nonnisi cum debita discretione 
accipiendum esse arbitramur.” Sabetti-Barrett (American), (Theologia 
Moralis, p. 583), contains a table of the different sects, which bears out 
Lehmkuhl’s view for Episcopalians, Methodists, Presbyterians, Congrega- 
tionalists, Unitarians, Universalists, Baptists, Socinians, and Quakers, 
but rejects it for Oriental heretics and Old Catholics, 

Past responses of the Holy See have taken the actual custom of bap- 
tizing invalidly as a safe presumption of invalidity, e.g., Instr. S. C. de 
Prop. Fide, June 23, 1830, Col., no. 814, in fine, S. C. S. Off., November 
17, 1830, ad 3, Coll., no. 821 (. . . nullum baptismum ex consuetudine 
actuali tllus sectae . . . ), Instr. S. C. de Prop. Fidei, July 26, 1845, 
Coll., no. 999 (... . non est imprudens nec insuetum, propter haereti- 
corum incertam et suspectam praxim . . .), S.C. S. Off., July 5, 1853, 
ad 3, eee no. 1096 (. . . ex consuetudine actuali eiusdem sectae 

a paeCLGe 

8 The responses of the Holy Office make no distinction between 
investigation in the case of the healthy and the dying, e. g., Instruction, 
Holy Office, November 20, 1878 (ASS, XI, p. 613-615). 

9 Canon 779. 

10 Trent, Sess. VII, De Baptismo, can. 11, 13, 14. 

11 Trent, Sess. VII, De Baptismo, can. 4. (The precise object of this 
dogmatic canon is a heretic baptizing.) 


PRELIMINARY CONSIDERATIONS 13 


that if there is a prudent doubt whether the Baptism 
was either really or validly conferred or not, it is to be 
repeated conditionally.* An actual custom on the part 
of a particular non-Catholic minister, known to the 
priest from former investigation, will certainly give 
ground for a prudent doubt, if the dying person was 
baptized by him. But it seems to be extreme to act 
on a general notion that all non-Catholics baptize in- 
validly in the United States. 

3. Cases in Which There Is No Possibility of a Sign. 
1. The Problem. 

It is obvious that if the dying person is in control of 
his senses and can communicate with the minister, suf- 
ficient investigation can be made to ascertain the na- 
ture of his intention. Further, even though he lost 
power of definite communication, signs both from the 
past and the present, either by the dying person or 
through others, will afford a basis for action. Such 
signs and cases will be investigated in subsequent 
chapters. But suppose there are no signs, as far as 
the minister is concerned, and due to destitution of the 
senses, no further information can be obtained from 
the subject or others. Can the Sacraments be adminis: 
tered to such a one conditionally? This is the problem. 
It is also understood throughout the discussion that 
the subject is on the point of death. 

2. Method and Object. 

It may be stated at the outset that there is and has 
been considerable diversity of opinions in the solution 
of this problem. It is particularly difficult in the case 
of Baptism, which forms the first division in the pres- 
ent section; perhaps a little less difficult in that of Pen- 
ance, the second division. 

The object of this discussion is to present the sub- 


12 Canon 732, no. 2. 


14 PRELIMINARY CONSIDERATIONS 


stance of the arguments urged by both opinions, offer 
a few suggestions, which may, without any claim what- 
soever on the part of the writer to certitude, provide 
a new point of view, and consider the main objec- 
tions. It is hoped thereby that the practical concln- 
sions drawn may have sufficient support to warrant 
action. 
A. THe SacRAMENT OF Baptism. 

In the hypothesis nothing is known concerning the 
absence or presence of the intention of being baptized 
on the part of the subject. 

1. The Affimatwe. 

The opinion of Catherinus, at least as far as the min- 
ister of the Sacrament is concerned, has passed out 
of the schools. But the recipient of the Sacraments is 
the subject of the present discussion. Pope Benedict 
XIV in his Constitution Postremo mense, February 28, 
1747, states that the view of Catherinus, ‘‘ . . . minus 
habet difficultatis, cam non de conferente agatur, sed de 
aecipiente Baptismum. Propositio autem ab Alexandro 
VIII damnata, objici Catherino solita, conferentem 
respicit, non accipientem.’’*? The same Pope, however, 
admits in a later work that the proposition of Pope 
Alexander VIII inflicted a ‘‘grave vulnus”’ on the 
opinion.'* It is today without any following, although 

13 No. 47, Benedicti XIV, Bullarium, II, p. 185. The passage is as 
follows: “Quidquid sit de opinione Catharini, qui sustinet, conferenti 
exteriorem sufficere compositionem, etiam si non id animo proponat 
facere, quod Ecclesia solet, de qua opinione multa alibi diximus in 
nostro Tractatu de Sacrificio Missae ad part. 4, sect. 2, num. 76 et seqq. 
haec, inquam, opinio mimus habet difficultatis, cum non de conferente 
agatur, sed de accipiente Baptismum. Propositio autem ab Alexandro 
VIII, damnata, objici Catherino solita, conferentem respicit, non acci- 
pientem: Valet Baptismus collatus a Ministro, qui omnem ritum exter- 
num, formamque Baptismi observat, intus vero, et in corde suo resolvit, 
non mtendo facere, quod facit Ecclesia.” Cfr. Pourratt, The Theology of 
the Sacraments, p. 391, who says that Pope Alexander VIII expressly 
declared that he was not condemning the view of Catharinus; Hurter, 
Theo. Dogm. Comp., III, no. 337. 

14 De syn. dioc., VII, 4, 8, which was published in 1748, and revised 


and augmented 1755, refers expressly to the Postremo mense, Lib. VI, 
cap. 4. But Pallavicini, Historie du Concile de Trente (cited in future 


PRELIMINARY CONSIDERATIONS 15 


it can hardly be said to have received special attention 
from viewpoint of the recipient expressly. The well- 
known neutral view of Cardinal Cajetan, although not 
common, has some force. Possibly Lehmkuhl refers to 
these theologians, and accepts their opinions as suffi- 
cient ground in our hypothesis for the conditional ad- 
ministration of Baptism. 

Another class of theologians consider that an act of 
sorrow ex fide concepta habent pro voluntate baptism 
fortasse suffcienti.° Some who reject this view con- 
cede that it can be acted on in our hypothesis.’® 

Still another theologian, admitting some slight prob- 
ability in the former opinion, permits conditional Bap- 
tism, because of the salvific will of Christ.’ 

Thus, it would seem, in our humble judgment, that 
the affirmative opinion has but shght intrinsic founda- 
tion from viewpcint of intention, although it has suffi- 
cient extrinsic probability for the conditional adminis- 
tration of Baptism in the hypothesis. 

2. The Negative. 
At the opposite extreme are found very eminent theo- 


references simply Pallavicini), IX, 6, no. 2, 3, expressly relates that the 
Fathers of this Council purposely avoided condemning the view of 
Catharinus. 

15 Cfr. Lehmkuhl, op. c., II, no. 78 (Ed. 3, 1886); Vermeersch- 
Creusen, II, no. 35; Genicot, Just. Theo. Mor., II, no. 150; Capello, De 
Sacramentis, I, no. 155, does not reject the view because of its extrinsic 
probability, and in our particular hypothesis, as a practical conclusion, 
says: “Palam est Baptismum esse conferendum sub conditione.” Pesch, 
Tract. Dogm., V1, no. 439, rejects the view of Suarez for practice, with 
the restriction noted in our practical conclusions, on the ground that the 
intention cannot be fixed theoretically. 

Priimmer, Man. Theo. Mor., III, no. 135, seems to maintain that Bap- 
tism cannot be given without a positive presumption. A large group 
of theologians analyze the least possible intention that will satisfy for 
validity, and from this conclude that the negative opinion is proved. 
In our humble opinion, which we believe is that of Pesch, 1. c., Lehmkuhl, 
l.c., Genicot, 1. c., this does not touch the real question, as the possibility 
of licit administration of conditional Baptism under the circumstances 
and not its valid reception is the question. From the very nature of the 
case, nothing can be known concerning the validity or invalidity until 
the subject manifests his mind. 

16 Cfr. Capello, I.c., Lehmkuhl, I. c., Genicot, 1. c. 

17 Genicot, 1. c. 


16 PRELIMINARY CONSIDERATIONS 


logians, such as Suarez and Lugo. They demand abso- 
lutely an intention for the reception of Baptism, and 
consequently conclude that it cannot be conferred 
without a sign in the present hypothesis. The argu- 
ments presented by the adherents of this view are 
usually as follows: 
1. A refutation of the affirmative opinions ; 
2. A statement that in cases in which there is no 
knowledge of the intention of the subject, the 
Church presumes the contrary ;"§ 


18 Suarez, Opera Omnia, vol. 30, D. XIV, sec. 2, no. 4. S. Bona- 
venturae, Opera Omnia, Tom. IV (Quaracchi, 1889), Sent. Lib. IV, 
D. IV., P. I, art. 2, q. 1, p. 101 (Conclusio), 3: “Ad illud quod obiicitux, 
quod Sacramentum est donum Dei; dicendum, quod est donum gratiae 
gratis datae et gratum facientis ; quamvis autem donum gratiae gratum 
facientis non detur habenti duplex cor et duplicem voluntatem, datur 
tamen donum gratiae gratis datae, quod non exigit tantam dispositionem 
in suscipiente.” 4: “Ad illud quod obiicitur, quod lex evangelica est 
lex libertatis; dicendum, quod verum est, quod de wre non datur nec 
dari debet ei qui libera voluntate non accedit; et ius divinum hoc dictat, 
et Constantinus de hoc legem condidit. De facto tamen, si fiat, factum 
est ; hoc tamen habet veritatem in re Sacramenti, quod facit esse in lege 
libertatis.” “3.4. Ad illud quod obiicitur ultimo de comminatione mor- 
tis; dicendum, quod maior potest esse coactio quam haec; nam haec est 
solum indiucens, non sufficiens. Sed cum accipitur, velit nolit, et immergi- 
tur, ibi est sufficiens coactio. Quamvis enim voluntas non possit cogi im 
volendo, potest tamen simpliciter homini fieri coactio im actu extertort. 
Unde voluntas inducta voluntas est; et ideo hic imprimitur character, et 
ibi non. Et est exemplum in eo qui ponit thura timore mortis, et de eo 
cuius manus trahitur violenter; primus consentit et peccat et dicitur 
sacrificare, secundus non. Sic qui Sacramentum inductus suscipit, con- 
sentire; sive inducatur amore bono vel malo, sive timore bono vel malo, 
suscipit Sacramentum, quia Sacramentum susceptio est bonis malisve 
communis. Et ideo talis voluntas sufficit ad Sacramentum, ut seniores 
dicunt. Et sic patet, quibus character baptismalis imprimitur.” 

Joannis Duns Scoti, Opera Omnia, Tom. XVI (Parisiis, 1894), Lib. 
IV, Sent, D.IV, gq. 4, Scholium, p. 417: (In regard to adults, who 
“aut non utitur nunc ratione, sed aliquando est usus’”): “Sed, expeditne 
talem baptizari? Multa enim licet, quae non expediunt, 1 Corinth. 6. 
Respondeo, si speretur eum rediturum ad usum rationis, magis expedit 
tempus expectare, quo uteretur ratione, puta de dormiente, tempus 
vigiliae expedit expectare, et de furioso tempus lucidi intervalli. Si 
atitem non speretur, puta de eo, qui incidit in perpetum impedimentum 
usus rationis, eum expedit baptizare, si tamen est capax Baptismi, quia 
alias exponeretur periculo damnationis, Qualiter autem sit capax, statim 
dicetur de utente ratione.” Scholium, p. 420: “Et esto quod sic, num- 
quid ille, qui tantum negative non consentit, negative etiam non dissentit? 
quia nec actum, nec habitum oppositum habet. De primo posset dici, 
quod talis judicatur habitualiter consentiens, quia aliquando habuit con- 
sensum actualem, non interveniente dissensu; et talis, licet utens ra- 
tione, recipit Sacramentum, quia non videtur propter aliquam condi- 


: PRELIMINARY CONSIDERATIONS 17 


3. Christ does not want Baptism imposed on any- 
one against his will;* 
4. The acceptance of a gift and a new life demands 
a volitional human act.*® 
The first argument does not necessarily prove that 
the present view (negative) is correct, but it does es- 
tablish a greater probability. The second argument is 


tionem minus capax, si utitur ratione, quam si prius usus, non utatur 
nunc; sed in tali non utente nunc, prius tamen uso, sufficeret habitualis 
consensus; ergo et hic. De secundo, licet, difficile esset aliquem talem 
_invenire, praecipue qui prius aliquando cogitasset de Baptismo, quia vel 
tunc placuisset, imo displicuisset, et secundum ultimum modum judicare- 
tur talis habitualis consensus vel dissensus esse in posterum, tamen si 
quis esset omnino non consentiens, nec dissentiens, tam actualiter quam 
habitualiter, et tamen utens ratione, non esset capax Baptismi, quia ex 
quo utitur ratione, oportet quod habeat devotionem aliquam ad Sacra- 
mentum, si debet sibi valere, aliter enim videretur contemnere.” 

The following passage from the Summa of St. Thomas, which is ex- 
tremely disputed, seems, in the humble opinion of the writer, to agree 
with the above citations: (III, q. 64, a.8, ad secundum) “Sed hoc satis 
posset dici, quantum ad ultimum effectum, qui est justificatio a peccatis ; 
sed quantum ad effectum, qui est res, et sacramentum, scilicet quantum ad 
characterem, non videtur quod per devotionem accedentis possit suppleri: 
quia character numquam imprimitur, nisi per sacramentum; et ideo alii 
melius dicunt, quod minister sacramenti agit in persona totius Ecclesiae, 
cujus est minister; im verbis autem, quae profert, exprimitur intentio 
Ecclesiae; quae sufficit ad perfectionem sacramenti nisi contrarium 
exterius exprimatur ex parte ministri, vel recipientis sacramentum.” 

Cajetan concluded that a neutral intention would suffice for validity, 
which intention Suarez rejected. Possibly a compromise could be made, 
the lack of an expressed contrary will suffices for licit administration 
in extreme cases in faciem Ecclesiae, the validity per se being judged by 
the principles laid down by the Angelic Doctor for the perfection of the 
Sacrament: “Ad tertium dicendum, quod licet ille qui aliud cogitat, non 
habeat actualem intentionem, habet tamen intentionem habitualem, quae 
sufficit ad perfectionem sacramentt. Bes 

The crux of the question seems to be: What will suffice for the licit 
administration? The validity will naturally be determined by the actual 
possession of some intention, and the Sacrament post factum will be 
judged on a basis of the content of this intention or its actual absence, 
not the knowledge of it by the minister. 

19 Katschtaler, Theo. Dogm., IV, no. 154. Two further practical 
objections are urged. Canon 1351 reads: “Ad amplexandam fidem 
catholicam nemo invitus cogatur.”” In the footnotes to this canon refer- 
ence is made to canons 752 and 754, which regulate the administration of 
Baptism in extreme cases, where the right of the person, even though 
in extremis, is guarded by the demand of manifested intention. Doctors 
and psychologists also state that oftentimes dying persons, who are unable 
in any manner to communicate with bystanders, continue to be conscious 
of what is going on around them. Hence, if the dying’ person did not 
want the ministrations of a priest, it is quite possible that his good faith 
would be changed into bad faith. Sometimes another objection is raised 
which really has not practical foundation, in our humble opinion, namely, 
the danger of religious indifferentism. 


18 PRELIMINARY CONSIDERATIONS 


not very serious when the salvation of a soul is at 
stake. The third and fourth are not as one supposes 
the presence of the intention (3) and the other its 
absence (4). | 

If the knowledge of the subject’s intention, in addi- 
tion to its possession, were clearly proven by the de- 
fenders of this view to be necessary for licit conditional 
administration in our hypothesis, in the humble opin- 
ion of the writer, the case would be solved. This seems 
to be the weakest link in the whole opinion and dis- 
cussion. 

3. A Few Suggestions. 

The real difficulty is perhaps not the lack of inten- 
tion, which is unknown, but the lack of knowledge. 
Hence, the Baptism administered cannot be declared 
certainly valid or invalid until the facts are known 
with the recovery of the subject. 

Lack of knowledge in regard to a condition required 
for validity in some cases at least permits of condi- 
tional repetition or administration of Baptism, e.g., a 
fetus,?° a monstrum,”' a foundling,” ete. 

If an act of sorrow ‘‘ex fide concepta’’ can be postu- 
lated, it is hard to see that God’s assistance must neces- 
sarily stop short at this. Consequently, some theolo- 
gians ** teach that it passes into a perfect act of contri- 
tion. If this be the case, then, at least some kind of 
votum Baptism: is present. 

4, Practical Conclusions. 

In the abstract, it would seem, intrinsically the prob- 
lem has not found adequate solution. Extinsically, the 
milder opinion seems to have sufficient support for 
action. The case, however, as it occurs is hardly ca- 

20 Canon 747. 

21 Canon 748. 

22 Canon 749. 


23 E.g., St. Alphonsus, Theo. Mor., VI, no. 8; Lehmkuhl, 1.c. 
Pesch, Tract. T. Dogm., VI, no. 311. 


PRELIMINARY CONSIDERATIONS 19 


pable of being finally and definitely settled in the ab- 
stract. If there are no signs, there are surely some 
circumstances which will aid, e.g., that the dying person 
is now married to a Catholic wife, or was a member of 
some Christian sect, or worked with Catholic compan- 
ions who perhaps discussed religion, and other suchlike 
acts, which pastoral prudence will weigh. If there are 
no signs, but contrary acts, e.g., positive refusal and 
violation of the cautiones, bitter persecution of Catho- 
lies, ete., it is certainly difficult to see how prudence 
would permit action. If the case happens in the con- 
crete as considered in the abstract, it seems probable 
that the opinions of the theologians allowing condi- 
tional Baptism can be followed. Even those who sup- 
port the opposite opinion teach that less intention is 
required on the part of the recipient than the minister.” 
The views of Catherinus and Cajetan have never been 
condemned, nor those of other theologians teaching 
that conditional Baptism can be administered. But it 
is admitted that even slight probability can be followed 
in such extreme cases.” Finally, the question of actual 
validity or invalidity can only be definitely settled by 
the facts in the matter, which the subject alone can 
reveal. 

24 E.g., Suarez, Opera omnia, vol. XX, D. XIV, sec. 2, no. 4: “Quin 
potius minor concursus voluntatis hujus requiritur in suscipiente quam 
in ministrante Sacramentum, .’ et alii. We have purposely re- 
frained from citing the disputed historical facts and testimonies, and 
also the passage of St. Thomas, Summa, III, q. Ixiv, a. 8, ad sec. in fine, 
which both Cajetan and Suarez use, although they hold opposite views, 
to support their opinions. It is not out of place, however, to cite Pourrat, 
op.c., p. 390, on these: “The theologians who deem the interior inten- 
tion necessary must interpret the text of ancient authors which go counter 
to their view. The insufficiency of their explanations let us frankly 
admit.” This “insufficiency” is intensified when it is admitted that the 
crux of the problem is not the possession of the intention, which is ex 
hypothesi wholly unknown, but the lack of knowledge on the part of the 
minister of the presence or absence of it in the subject. 


25 E.g., St. Alphonsus, Theo. Mor., VI, no. 481; Lehmkuhl, l.c.; 
Genicot, op.c., II, no. 423, et alii. 


20 PRELIMINARY CONSIDERATIONS 


B. Tue SacRaAMENT OF PENANCE. 
1. The Hypothesis. | 

As in the ease of Baptism, the present discussion cou- 
cerns a dying non-Catholic, who has become destitute 
of his senses, and has not given and is at present unable 
to give any sign. 

2. Preluminary Considerations. 

The difficulty in regard to the lack of knowledge by 
the priest concerning the intention of the dying person 
is not so great as in the case of the unbaptized. The 
dying person has been baptized, so that he is really a 
subject of the Church, although in a state of at least 
material rebellion.** Penance is a Sacrament of the 
internal forum, which, according to the Council of 
Trent, requires the confession of sins sicut in conscien- 
iia.2’ In the case. the person may have been a material 
heretic or schismatic, under which circumstances he 
has not committed a formal sin of heresy, for which 
he is guilty in conscience. If he had been a formal 
heretic or schismatic, this cannot be proved or pre- 
sumed in the internal forum, when he is destitute of 
his senses. Hence, in either case, he cannot be cer- 
tainly proved unworthy. But in the extreme spiritual 
necessity of death, canon 882 gives any priest ample 
power, and per se at least conditional absolution must 
be given. : 

There is, however, difficulty concerning the intention 
of the dying person. if he was a schismatic or a mem- 
ber of a non-Catholic sect believing in the Sacrament 
of Penance, there is no reason for excluding a sacra- 
mental intention. If he was not, then he probably be- 
hieves in some form of confession of sins to God, or 
can be presumed to be at least attrite. The Holy Office, 
August 1, 1855, stated a presumption for contumacious 


26 Canon 87. 
27 Sess. XIV, De Sac. Poen., cap. 5, de confessione. 


PRELIMINARY CONSIDERATIONS 21 


freemasons, . . . ‘‘quemadmodum etiam in articu- 
lo mortis possunt per contritionem in Dei gratiam re- 
dire, ac internam cum membris mystici corporis Christi 
communicationem adipisci . . .’’* In order that 
these contumacious persons be absolved from the cen- 
sure, even after death, they must have given clear signs 
of repentance. Nothing is said of absolution from sin. 
It is the presumption, however, which concerns us here. 
If this act becomes perfect contrition, it contains at 
least an implicit desire of Penance.*® If it remains 
attrition, a disposition to ask for the Sacrament of 
Penance is present.*° 

3. The Difficulties. 

The real difficulty arises from another source. Many 
theologians teach that some sensible sign is required 
for the licit administration of the Sacrament, as the 
acts of the penitent constitute the matter, not merely 
conditio sine qua non of the Sacrament.** Modern 
Thomists, however, are willing to concede that these 
may be virtually contained in an internal act of sor- 


28) Coll; no. 1116. 

29 Trent, Sess. XIV, cap. 4, de contritione, tamen eum ad 
Die gratiam in sacramento poenitentiae impetrandam disponit, iN 
and as regards perfect contrition, “ ipsam nihilominus reconcilia- 
tionem ipsi contritioni, sine sacramenti voto, quod in illa includitur, non 
esse abscribendam.” 

30 Vide 29. 

31 Those who maintain a sensible sign is necessary in all cases, 
Suarez, op.c., vol. 21, D. XXIII, sec. 1, no. 13; Lugo, De Poenitentiae, 
D. XVII, sec. 3, whose views are refuted by the editor in a footnote. 

Those supporting the view in the text. Lacroix, Theo. Mor., V1, pars 
II, no. 1162; St. Alphonsus, op.c., VI, no. 482, admits conditional abso- 
lution, except in no. 483 to non-Catholics who became destitute of their 
senses in the actual act of grave external mortal sin; D’Annibale, Theo. 
Mor., III, no. 317. This is the common opinion among theologians today, 
e.g., Billuart, Cursus theo., D. VI, a.10, VII, 2; Vermeesch, Theo. Mor., 
III, nos. 568, 570, 599; Lehmkuhl, op.c., II, no. 514; Genicot, op.c., II, 
no. 423; Prummer, M. T. M., III, no. 326, who devotes a paragraph to 
an explanation of how this opinion is more in conformity with Thomism 
than Scotism (no. 327); Knoll, Inst. Theo. Theoretice sew Dogm. 
Polemicae, IV, 512, no. 3, expressly accepts with the restriction of St. 
Alphonsus; Pesch, op.c., VII, nos. 82-86, 191, discusses the problem, 
starting from the premises, “Si enim confessio sensibilis requiritur 
solum ut condicio praevia, sacramentum existere posse videtur sine sensi- 


ce 


22 PRELIMINARY CONSIDERATIONS 


row.?2. Modern Scotists teach that the sensible sign is, 
not absolutely necessary.** 

Suarez *4 and Lugo ** urge a second difficulty: Pen- 
ance involves the exercise of a judicial act by the min- 
ister, which is impossible where no sign has been given. 
But modern theologians, while recognizing these diffi- 
culties, urge the giving of conditional absolution. 

4. Suggestions. 

Both of the difficulties urged apply with equal force 
to the cases of dying Catholics. 

The Church never defined that a sensible sign was 
necessary for the validity of the Sacrament. Theolo- 
gians have not proved that the knowledge of this sen- 
sible sign as distinct from its existence is necessary for 
the validity of the Sacrament. As a matter of fact, the 
the question was expressly raised in the Council of 
Trent, and was purposely left undetermined.*? More- 
over, the History of the Council shows conclusively that 
the teaching was very carefully drafted so as to be in 
conformity with and not condemnatory of the reconcili- 
ation theory as proposed by Andre Vega: ‘‘However 
celebrated doctors are to be found among the Francis- 
cans who try to interpret their master in a sense not 
different from the ordinary sense. Among others is 
Andre Vega, the most famous of the Scotists assisting 
at the Council. Already four years earlier, in the vol- 
ume cited, which he wrote on the decree on justification 
bili confessione, dummodo objective aliqua confessio adsit. Ita saltem 
quidem putare videtur,” and concludes that absolution is valde dubium 
even where some signs, although indefinite, have been given; Pourrat, 
op.c., after an historical study of the Sacraments, agrees entirely with 
the affirmative view. 

32 E.g., Priimmer, op.c., III, no. 327. 

33 Cfr. Genicot, op.c., II, no. 300; Tanquerey, Syn. Theo. Mor., 
Pars Dogm., III, no. 164. 

34 Suarez., op.c., vol. 21, D. XXIII, sec. 1, no. 13. 

35 Lugo, opic., D. XVII; séc, 3: 

36 Cir. e. g., Genicot, op.c., lc. 


37 Pallavicini, op.c., XII, c.11, no. 9, but distinguish what Palla- 
vicini advances as his view, and what he says the Council did. 


PRELIMINARY CONSIDERATIONS 23 


promulgated in the sixth session, Vega set forth the 
opinion of Seotus in such a way that it would seem as 
if it presented only a verbal difficulty, and was at bot- 
tom true. According to Vega, Scotus does not deny 
that these acts are parts of the Sacrament m some 
fashion, but denies that they are essential parts. He 
attributes them to the Sacrament only as integral parts, 
according to the language of the School, and we have 
seen that the Council in that acted with a great deal of 
concern for the opinion of Scotus. It declared in the 
third chapter and in the fourth canon, the acts of the 
penitent previously cited are not parts of the Sacra- 
ment, but parts of the virtue of penance, and it ex- 
plained in this third chapter above that they are called 
parts of the virtue of penance in so far as by divine 
institution they are required in the penitent for the 
integrity of the Sacrament and for the full and perfect 
remission of the sins.’’*8& This view is quite clear. In 
the preceding chapter, the same history notes that the 
Fathers possibly intended to define ‘‘attritio fit consti- 
tutum sacramentum,’’® but did not as they did not 
want to end the discussion in the schools, but were 
content with condemning the Protestant error. Now, 
it matters little to our argument whether Scotus really 
held this view or not. The fact is that the Council did 
not condemn it, and consequently no private theologian 
ean afford to overlook it completely, or deny its proba- 
bility. Vega maintains that the acts of the penitent are 
essential to the Sacrament only to the same degree as 
they are necessary to the virtue of penance. But no 
one would deny that they can be completely internal in 

BRWIIne ALi colo novi: 

39 Ibid. XII, c.10, no. 26, according to Pesch, op.c., VII, Palla- 


vicini’s words are: “. . mais encore qu’elle suffit pour la réception 
de ce sacrament. ... 


24 PRELIMINARY CONSIDERATIONS 


the case of the virtue, so that the same must be true in 
the case of the Sacrament. 

The difficulty from viewpoint of the judicial nature 
of the Sacrament is somewhat more difficult to answer. 
The Council of Trent teaches that it must be exercised 
in a judicial manner by the minister.*° This involves 
a guilty person, matter on which the judgment is to be 
passed, and a judge. But is not the matter present in 
some manner? The presumption is that the dying per- 
son is at least attrite. In a word, the sinner is con- 
fessing his sins to God, perhaps expressly, though not 
sensibly manifesting them. The minister lacks knowl- 
edge in regard to anything further, but absolves from 
these sins. He is thus conscious of the sinful condition 
of the dying person, and on this passes the judgment. 


5. Confirmatory Proof. 

The continuity of practice, a least in the case of 
dying Catholics, under the conditions postulated, pro- 
vides in itself strong confirmation. Theologians in 
general admit that where even the vaguest sign is 
given, which may be indicative of the intention, 
there is no difficulty. Again, they raise no difficulties 
against the validity of the absolution where one gen- 
eral absolution is given to a large group of persons at 
the same time, in which the sensible sign is knowable, 
but in the case of very many actually unperceived by 
the minister. There is a parallel between all these 
cases and that which we are considering. 

St. Augustine writes of somewhat similar cases, 
‘‘Non ipsos enim ex hae vita arrha pacis exire velle 
debet mater Eecclesia.’’** There is no doubt that the 

40 Sess. XIV, De Poenitentia, canon 9. Cfr. Pesch, op.c., VII, nos. 
79, 69, 15, but also nos. 82-86; Hurter, Theo. Dogm., III, no. 624: 
“Quamvis autem poenitentiae sacramentum per modum judicii sit insti- 


tutum, non tamen in omnibus hujus naturam sequitur; quoadusque illud 


imitetur, ex praxi colligi debet”; Vermeersch, Theo. Mor., III, no. 570, 
599. 


41 De ault. conjug., 28, 35, CSEL, vol. xli, sect. v, pars iii, p. 382. 


PRELIMINARY CONSIDERATIONS 25 


affirmative opinion is the most common among mora- 
lists today. 

This practice and teaching has never been condemned 
by the Holy See, but rather approved by two recent 
decisions of the Holy Office. In neither response was 
any restriction placed in regard to the difficulties dis- 
cussed in the schools. The first was given, July 22, 
1898: ‘‘An aliquando absolvi possint schismatici ma- 
teriales, qui in bona fide versantur? R. Cum scandu- 
lum nequeat vitari, Negative, praeterquam in mortis 
articulo; et tune efficaciter remoto scandalo.’’*” The 
other response is still more striking, and was given May 
26,1916: ‘‘An schismaticis in mortis articulo sensibus 
destitutis absolutio et extrema unctio conferri potest? 
R. Sub conditione (cum de intentione allisque in poeni- 
tentia ad valorem requisitis dubitari debeat) affirma- 
tive, praesertim si ex adjunctis conjicere liceat, eos 
implicite saltem errores suos rejicere, remoto tamen 
seandalo, manifestando scilicet adstantibus (qui id 
nesciant) Eeclesiam suponere eos in ultimo momento ad 
unitatem rediisse.’’** 


6. Practical Conclusion. 

The practice is certain in the case of Penance, and 
there would seem to be an obligation at least in charity 
of administering this Sacrament. 

42 ASS, XXXI, p. 254. 

43 Cited by Priimmer, op.c., III, p. 223, in the footnote, from Linzer 


Theol. Quartalschr., 1916, 693, and Reuter-Lehmkuhl-Umberg, Neo-Con- 
fessarius, no. 203, from Kélner Pastoralblatt, 50 (1916), 504. 


CHAPTER ITI. 
THE BAPTISM OF DYING NON-CATHOLICS. 


The signification of the term adult in reference to the 
Sacrament of Baptism has already been investigated in 
the preceding chapter.t. This discussion forms the 
natural basis of division in the subject matter of the 
present chapter, which falls into three sections: 


1. The Baptism of dying infants of non-Catholies; 

2. The Baptism of dying abnormal adults; 

3. The Baptism of dying adult non-Catholies. 
1. The Baptism of Dying Infants of non-Catholics. 

The object of the writer throughout is to explain the 

canons of the Code. Hence, the relevant canons form 
the first subdivision. But the Code represents the 
climax of a long history, which is of much interest, 
and provides a second subdivision. The third com. 
prises an attempted interpretation of the canons of 
the Code itself, followed by a consideration of inci- 
dental questions or objections, in accordance with the 
demands of the subject. This order will be maintained 
throughout the rest of the book, in so far as possible. 


A. THE Canons oF THE CODE. 
The dying infants of infidel parents are the object 
of canon 750, par. 1: 


Infans infidelium, etiam invitis parentibus, 
licite baptizatur, cum in eo versatur vitae dis- 
erimine, ut prudenter praevideatur moriturus, an- 
tequam usum rationis attingat. 


The correlative canon 751 provides the general rule 


1 Cfr. chapter II, no. 1. 
26 


BAPTISM 20 
for dying infants of heretics and schismatics: 


Cirea baptismum infantium duorum haeretico- 
rum aut schismaticorum, aut duorum ecatholicorum 
qui in apostasiam vel haeresim vel schisma pro- 
lapsi sint, generatim serventur normae in superi- 
ore canone constitutae. 


B. Historica, SuRVEY. 
1. Early Express Testimonies Concerning Infants of 
Non-Catholics. 

The early Fathers make no distinction in their teach- 
ing on the Baptism of infants. During the ages of 
persecution, this would naturally be expected, as their 
works were often read by pagans and heretics, and in 
some cases specifically addressed to them. These writ- 
ings were at least accesible at all times. Consequently, 
any undue stressing of the baptizing of dying infidel 
infants would have added fuel to the fire of persecu- 
tion already rampant. Even in modern times, the 
Congregation of the Propaganda has cautioned mis- 
sionaries concerning the use of discretion and secrecy 
in the matter, and the omission of Baptism in cases 
where it is otherwise licit, but may bring persecution or 
hatred of Christians.’ 

In the fifth century, when Christianity was already 
favored by the state, evidences can be found which are 
indicative of the general attitude, which are quite gen- 
eral in their statements, and which can cover all cases. 
A loeal council of Carthage (401) commends the legati 
Maurorum fratres nostri, because they redeem many 
barbarians whom they have baptized. This redemp- 
tion is obviously to prevent perversion in the future. 
In fact, the practice seems to have grown to such pro- 
portions that Pope Leo I (444-461) found occasion to 


Prete een Cs Prop, ba Aprili17; .1¢77,,aG- 1, Cols, NOsbee: 
3 c.111, D. IV, de consec. 


28 BAPTISM 


rebuke those whose indiscrete zeal led them to baptize 
hostages who fell back into paganism on return to 


their own country.* The same Pope ordered the Bap- 
tism of foundlings and children recaptured from the 
enemy, after enquiry had been made as regards any 
previous Baptism.’ Local abuses existed in Spain in 
the sixth and seventh centuries,® which also appear in a 
local council of Paris (614).7. Jews were compelled to 
be baptized, probably due to the interference of the 
civil power in Spain, where the councils were composed 
of representatives of both the Church and the state. 
The eighth ecumenical council, Nice II (787) contains 
a canon which seems to be specifically directed against 
such local practices.® 

In the eighth and ninth centuries there does not 
seem to be more. explicit testimony. Canons of local 
synods and the collections of the statutes of St. Boni- 
face contain regulations worded in general terms, but 
do not with certainty indicate the practice in the case of 
dying infants of non-Catholic parents. Thus, St. Boni- 
face orders the conditonal Baptism, after investigation, 
of children baptized by heretics, priests are to carry 
the holy oils and chrism with them on journeys for 
cases of necessity, and any priest is to baptize a sick 
child brought to him,® ete. 

2. The Decretum and Mediaeval Theologians. 

Much of the past legislation, already cited, is found 
in the Decretum Gratiani, e.g., the canon of Carthage, 
and the questions answered by Pope Leo I, but no new 

4 c.111, D.IV, de consec.; for fuller text, Cavallera, Thesaurus, 


no. 1040. 

5 c.1138, D.IV, de consec.; for fuller text, Cavallera, Thesaurus, 
no. 1041. 

6 c.14, Toledo III (589), Hef.-Lecq., III, p. 227; c.60, 61, 63, 
Toledo IV (633), Hef.-Lecq., III, p. 274-275. Cfr. Council ot ‘Toledo, 
652, 680, 693, 694. 

7 c. 4, Paris (614), Hef.-Lecq., III, p. 929. 

Sc. 8,.blet-Leeq:; ITT) np. 7A83,; 

9 cs. 4, 18, 32, 31, Hef.-Lecq., III, p. 929-932. 


BAPTISM 29 


development appears.?° 

In the schools, however, the question of the right of 
the Church, without much current information as to 
the fact or practice, becomes the subject of discussion. 
Durandus denied the validity of Baptism conferred on 
infants of Jews and infidels against the wishes of their — 
parents.1! St. Thomas, whilst maintaining the validity 
of such Baptisms, answers without distinction that 
they are illicit, and violate the natural right of the 
parents. Scotus held that a prince could laudibly 
command it, but must take care that such parents do 
not kill the children.’* There is no theoretical difficulty 
concerning the children of heretical parents. 


3. Modern Times. 

The mediaeval theologians had not considered spe- 
cifically the case of dying infants of non-Catholic par- 
ents. With increased missionary activities, this ques- 
tion became extremely practical. In Christian coun- 
tries, except in regard to Jews, it had not been very 
practical, as heretics baptized validly in most instances. 
In the responses gathered in the Collectanea (1622- 
1906) permission to baptize the dying infants of all 
non-Catholics is always conceded.'4 
(a). The Dying Infants of Infidel Parents. 

A response of the Holy Office, January 28, 1637, 
helped to settle the matter practically. Then, the alter- 
native is given, either articulum mortis, or the removal 
of the infant from the power of the parent, ete.1® But 
some doubt remained concerning the theory and the 
practice in regard to the infants of Jews. Hence, Pope 

10 cs. 111-113, D. IV, de consec. 

tie cbtr 4s; See V4 Gs 4, ) 4.) Lo. 

12 Summa III, p. 68, a. 10; II-II, q. 10, a. 12. 

13 Sent. 4, D. IV, q. 9, a. 2. 

14 E.g., S.C. S. Officii, January 28, 1637, Coll., no. 90. 

15 Instr. S. C. de Prop. F., April 17, 1777, VI, Coll., no. 522, which 
cites several earlier responses, and calls attention to the need of caution 


to avoid hatred; S. C. S. Officii, July 22, 1840, Coll., no. 902. 
16 E.g., S.C. S. Officii, August 24, 1703, Coll., no. 259. 


30 BAPTISM 


Benedict XIV in his letter Postremo mense, February 
28, 1747,17 expounded the theory particularly in refer- 
ence to the infants of Jewish parents, and settled the 
practical applications. In case of danger of death, or 
abandonment by the parents, the baptizing of such 
infants is laudable. 

The only difficulty that now remained was in regard 
to the danger of death required. This does not mean 
periculum commune et vagans,'® but in the same in- 
struction the attention of the missionaries is called to 
the fact that sickness, plague, etc., are far more likely 
to prove fatal in uncivilized than civilized regions. It 
also lays down a general principle: ‘‘Doctorum opin- 
iones ad Ecclesiae decreta sunt exigendae, non ipsa de- 
ereta ad opinantium libitum inflectenda.’’® In the 
nineteenth century, the decisions use the term pericu- 


lum and not articulus mortis.” Moreover, the word- 
ing seems to be more binding. Finally, periculum is 
distinguished from articulus mortis, Baptism is de- 
clared licit in both cases, and the very expression of 
the Code is also used in the third question: 


1. An possint baptizari filii infidelium in periculo, 
non vero in articulo mortis constituti. 

2. An iidem possint saltem baptizari, quando non 
est spes eos denuo revisendi. 

3. Quid si valde prudenter dubitetur, quod ex in- 
firmitate, qua actu afficiuntur, non vivant, sed 
moriantur ante aetatem discretionis? 

R. Ad 1, 2 et 3, Affirmative.” 





17 Opera, XVI, vol. 2, p. 170-191, cfr. no. 8, p. 172, no. 9, p. 173-174. 
18 Instr. S. C. de Prop. F., April 17, 1777, VII et VIII, Coll., no. 523: 
quidquid interdum velut per synonymam vocem nomine articuli 

mortis exprimitur, non autem loquuntur de illo communi et vaganti 
periculo, in quod nec vocabulum nec notio articuli mortis ullo modo 
convenit.” 

19 Ibid. VI. 

20 E.g., S.C. S. Off., July 22; 11840; \Coll., no.’ 902; SiG Siena 
December 11, 1850, ad 6, Coll., no. 1054. 

21 S.C. S. Off., July 18, 1894, Coll., no. 1877. 


“ 


BAPTISM 31 


(b). The Dying Infants of Heretical Parents. 

There never was any doubt concerning the right of 
the Church to baptize the infants of baptized persons. 
A decision, however, specifically stated that the 
Church certainly has the right, but the cardo difficulta- 
tis is that she ‘‘exequi non potest, nec periculum amo- 
vere . . .’’ In cases in which such parents offer 
their infants for Baptism, administration of Baptism is 
leit: 


Instante vero mortis periculo, aut quolibet vale- 
tudinis vitio infecti praedicti parvuli, quo pruden- 
ter decessuri credantur antequam annos discre- 
tionis attingant, non modo licet, sed sollicite curare 
debent missionarii . . . tune enim cessat 
proximum perversionis periculum, atque aeternae 
saluti infantis necessario remedio citra culpam, 
imo etiam cum merito ministri, prospicitur.” 


This is for a case in which the parents are willing to 
have their infant baptized. The same Instruction ap- 
plies the general principles where the parents are un- 
willing: ‘‘in extrema necessitate, in qua quilibet alius 
baptizari potest.’’** 

(ce). The Infants of Mixed Marriages. 

There is no particular danger of death required that 
such infants may be baptized. The Church regards 
the existence of one Catholic parent as_ sufficient 
ground in even normal cases for the elimination of 
the danger of perversion,” also when the infidel party 

Boer Ate Cit January: 21, 2767, Coll. no, 465. 

23 Ibid., cfr. Litt. Ap. Postremo mense, Benedicti PP. XIV, February 


28, 1747, Coll., no. 360, for infants of infidels, under similar circum- 
stances. 

24 Coll., no. 465. 

24B E.g., S.C. S. Officii, February 8, Coll., no. 9, and in footnote; 
S. C. S. Off., October 12, 1600; S. C. S. Off., November 29, 1672, Coll., 
no. 205 (one party heretic) ; Const. Bened. PP. XIV, February 2, 1744, 
ad 6, Coll., no. 345 (father a Turk); S. C. S. Off., November 18, 1745, 
Coll., no. 353 (a rather full response covering the principles and cases 
which may arise); S. C. S. Off., July 6-8, 1898, ad. 4, Coll., no. 2007. 


Be BAPTISM 


is unwilling,”® and the infant will later be baptized 
again by a non-Catholic minister.” If the Catholic 
party were an apostate, the infant under normal cir- 
cumstances may be baptized on her offering it and 
after her absolution.”” Another interesting case was 
solved, in which two parties, one a Catholic, the other 
a Jew, were civily married: the Catholic party is in 
articulo mortis. The response is that if there is a 
spes possibiis of the future Catholic instruction, the 
infant may be baptized; otherwise, only im mortis 
articulo.?® 


C. Tuer Present Law. 
1. Incit Baptism. 

An infant of infidel parents can be licitly baptized, 
even though the, parents are unwilling, cwm in eo ver- 
satur vitae discrimine, ut prudenter praevideatur mori- 
turus, antequam usus ratioms attmgat.”? The same 
holds generatim for the infants of two baptized non- 
Catholics.*° 


2. Possibility of Fulfilling Conditions for Normal 
admunstration. 

The clause, etiam invitis parentibus, is employed, so 
that both the father and the mother, and a fortiore 
those who take their place, may be certainly opposed, 
and with the full knowledge of this fact by the minis- 
ter. But in the hypothesis that the conditions con- 
tained in canon 750, par. 2, for the administration of 
Baptism to such infants outside of the danger of death 
are possible of fulfillment in such danger, is there an 
obligation of securing them? The canon in question is 
giving the rule for cases in which the parents are will- 

25 Cfr. preceding footnote, especially coll., no. 345. 

26 S. C. S. Off., November 29, 1672 (heretic), Coll., no. 205: hon 04 
S. Off., September 19, 1765 (schismatic), Coll., no. 460. 

Thin Ao tek MU tee February 8, 1624, Collt., no. 9. 

28 S.C. S. Off., July 6, 1898, Coll., no. 2007. 


29 Canon 750, no. 1. 
30 Canon 751. 


BAPTISM | at 


ing or unwilling etiam invitis parentibus. Past re- 
sponses of the Holy See have ordered the secret Bap- 
tism, and see a certain danger to the common good of 
Catholics, as already stated, in imprudent zeal.** How- 
ever, as there is question of moral probability in re- 
gard to the foreseen death before the use of reason, 
prudence would suggest that where the conditions of 
the second section can be easily secured, they should 
be obtained.* 


3. The Only Conditions Requred. 

The simple terms, articulus or periculum mortis, 
oftentimes used in the past, do not appear. This may 
be due to the fact that the former term might be given 
too restricted a signification, and the latter too exten- 
sive a meaning. Thus, in canonical and theological 
usage, the term periculum mortis is capable of 
stretching over many years; articulus mortis, on the 
other hand, might give rise to unnecessary scruples. 
In the case of Baptism, the line of demarkation be- 
tween infans and adultus is fundamentally the use of 
reason and not the age. Further, danger of perversion 
arises with the use of reason. Hence, a limit is placed 
to the discrimen vitae. Two conditions are really im- 
plied: first, a periculum mortis; and, secondly, a pru- 
dent judgment that death will come before the use of 
reason. 

It naturally follows that the discramen must be per- 
sonal to the infant, and actually here and now present 
in the degree required. The wording of the canon 
demands this,** the old law confirms it,** and the can- 

31 E.g., Instr. S. C. de Prop. F., April 17, 1777, ad 1, Coll., no. 522. 

32 Canon 750, no. 2, gives the conditions in question: 

No. 2. Extra mortis periculum, dummodo catholicae eius educa- 
tioni cautum sit, licite baptizatur : 

1. Si parentes vel tutores, aut saltem unus eorum, consentiant ; 

2. Si parentes, idest pater, mater, avus, avia, vel tutores desint, 
aut ius in eum amiserint, vel illud exercere nullo pacto queant. 

33 Canon 750, no. 1: “ cum in eo versatur vitae discrimine, 


ut prudenter praevideatur moriturus, antequam usum rationis attingat.” 
34 Lehmkuhl, Theo. Mor., II, no. 84; Cir. S.C. S. Off., July 18, 1894, 


24 BAPTISM 


onists are agreed.** The actual death need not take 
place until some time before the use of reason, but 
this must be morally certain at the time of the Bap- 
tism. The canon does not use the term articulus 
mortis, nor is it necessarily demanded, e.g., an infant . 
with some disease, which in the prudent judgment of 
the one to administer Baptism satisfies the condition, 
is a fit subject for immediate Baptism, even though 
the actual death will not take place before the use of 
reason. However, as has already been explained, if 
the child, although less than seven, has actually the 
use of reason, it falls under the canon governing the 
Baptism of adults when dying. 

In the particular case, the intensity of the discrimen 
can be determined in accord with past responses of the 
Holy See, by local conditions, medical advancement, 
etc.2® The existence of an indeterminate or common 
epidemic in a locality, as, for example, a plague, will 
not give ground for the Baptism of all the children, 
unless it is affecting the lives of each of the infants 
actually in the degree required.*” 

4. Does the Code Impose an Obligation? 

At various times, the Holy See has called the atten- 
tion of missionaries to the possibilities of baptizing 
dying infants of non-Catholies, ordering that they fol- 
low the decrees of the Holy See in this matter rather 
than private opinion.* The Instruction vehemently 
exhorted the missionaries to leave no stone unturned 
in securing the Baptism of such infants.** The present 
canon uses the terms licite bapitzatur. But there is 
ad 3, Coll., no. 1877; Instr. S. C. Prop. F., April 17, 1777, ad VII et 
VIII, Coll., no. 522. 

35 Vermeesch-Creusen, II, no. 33, 2; Blat, Com. T. J. C., III, p. 40. 

36 Instr. S. C. Prop. F., September 8, 1869, ad 46, Coll., no. 1346. 


37 Instr. S. C. Prop. F., April 17, 1777, Coll., no. 522; cfr. Ver- 
meersch-Creusen, II, no. 33. 
38 Instr. S. C. Prop. F., April 17, 1777, ad VI, Coll., no. 522. 


39 Ibid, ad VI, VII, VIII; cfr. Instr. S. C. S. Off., January 21, 
1767, Coll., no. 465. 


BAPTISM | 35 


need of prudence and expediency in view of the avoid- 
ance of greater public evils, even granted that the con- 
dition required is certainly present. The fear of per- 
secution and hatred are greatly lessened in modern 
times in some pagan countries, for example, in China 
and Japan, by the inroads made by western ideas, and 
particularly in the former country by the revolution 
and the consequent removal to a large extent of the 
main barriers, custom and tradition. But even in 
these countries this can hardly be said with equal truth 
in regard to all regions. In other countries, due to 
the domination of Christian powers, for example, in 
India, the fear is almost negligible. Add to these facts 
the increasing number of missionaries, the favorable 
attitude of the infidels, and perhaps greater applica- 
tion can be made of these canons. 

Do. Infants of Mixed Marriages. 

Where one of the parents is a Catholic, the condi- 
tion required for dying infants of two infidels, here- 
tics, etc., does not apply. The general rule is that 
they are to be baptized in the same manner as infants 
of Catholic parents, as long as the Catholic party is 
living.*® The Church has a right to baptize these in- 
fants, and in view of the past legislation, already cited, 
it would appear that the existence of the Catholic 
party, apart from real apostasy on his part, provides 
a spes possibilis that perversion will be averted in 
some way. If the Catholic party is dead, and the in- 
fant is in the control of the non-Catholic party, ob- 
viously the ordinary rule in regard to a dying non- 
Catholic infant must be applied.* 

D. Tur FunDAMENTAL PRINCIPLE. 

The Angelic Doctor, without distinction, considered 

40 Cfr. canons 756, no. 3, 1061, no. 1, 1, 1071, 2316. 

ee ten. Ot. July.6,)/1898,. Coll, no, 2007) crs S.4GrS) Off: 


October 12, 1600, Col., no. 9 (footnote); S. C. S. Off., November 18, 
1745, Coll., no. 353. 


36 BAPTISM 


that the Baptism of the infants of infidels, against the 
wishes of their parents, was a violation of the natural 
right of the parents: ‘‘Si vero nondum habent usum 
liberi arbitrii, secundum jus naturale sunt sub cura 
parentum, quamdiu ipsi sibi providere non possunt 
et ideo contra justitiam naturalem esset, si 
tales pueri invitis parentibus baptizarentur.’’*? He 
also urges that it would be dangerous to baptize such 
propter naturalem affectum ad parentes. Pope Bene- 
dict XIV stated that it was necessary to introduce a 
distinction, teaching that it was laudable to baptize 
such infants, against the wishes of their parents, when 
they were dying. | 

Some modern theologians maintain that the natural 
right of the parents is to the company of the child, and 
that the administration of Baptism when the infant is 
dying does not interfere with this right.** 

All rights and duties in this world, as all human 
activity, are merely means to man’s ultimate end. 
Thus, nature vests the rights of the infant in the 
parent, but only' in so far as the parents do not exer- 
cise this power to militate against the infant’s salva- 
tion. But in the case of an infant who will die before 
the attainment of the use of reason, the only possible 
means by which it can attain a supernatural end is 
Baptism. Hence, if the parents are unwilling to per- 
mit the Baptism of their infant in such a case, no 
right of theirs is violated in the administration of 
Baptism. 

The second reason—the danger of perversion— 
urged by St. Thomas, in the humble opinion of the 
writer, seems to be the fundamental principle in the 
present canons. Thus, in canon 751, which concerns 


42 Summa, III, q. 68, a. 10 (Respondeo). 
43 Postremo mense, Opera, XVI, p. 170-191. 
44 Pesch, Prac. Theo. Dogm., VI, no. 455-462. 





BAPTISM 37 


baptized persons, there can be no question of viola- 
tion of rights. In fact, a past response of the Holy 
See expressly stated that the danger of perversion 
was the cardo difficultatis.. But the same restrictions 
are placed as in Canon 750. This is likewise true of 
the infants of two apostates. It is also obvious from 
the constant responses of the Roman Congregations 
already cited. Three things can efficaciously remove 
the danger of perversion: physical death before the 
attainment of the use of reason; the future Catholic 
education of the infant; and, finally, permanent menta) 
death, i.e., habitual insanity from infancy. In all three 
eases, the Code permits Baptism. 

It would not be excessive to state that the Church 
has in the abstract the right to baptize all infants, 
which she exercises in the case of all habitually insane 
from infancy, checked only, by expediency. But this 
in application is for the individual welfare, which 
must yield to the public good, whenever it seriously 
menaces it. Thus, the exercise of the Church’s full 
rights in the matter would undoubtedly bring disrup- 
tion of the peace and harmony among races and na- 
tions, hatred and persecution to the members of the 
Church. Past responses, already noted, cautioned 
against imprudence under these heads. Further, St. 
Thomas, whose reason is incorporated in responses of 
the Holy See,** urges that where the use of reason is 
morally certain, perversion is likewise morally certain. 
Hence, St. Thomas cites the examples of saints chiding 
Christian emperors for commanding the Baptism of 
the infants of their infidel subjects.*7 The Angelic Doc- 
tor also calls this the constant custom of the Church, 

45 S. C. S. Off., January 21, 1767, Coll., no. 465. 

46 Cfr., e.g., Litt. Ap., Postremo mense, Benedicti PP. XIV, Febru- 
ary 28, 1747, Opera, XVI, p. 170-191. St. Thomas, Summa, III, q. 68, 
a. 10. 


47 Summa, II-II, q. 10, a.12. Cfr. Instr. S. C. de Prop. F., April 17, 
1777, ad VII et VIII, Coll., no. 522. 


38 BAPTISM 


which Pope Benedict XIV admits. But Benedict XIV 
himself in his constitution Postremo mense stated 
that a distinction had to be introduced in the view of 
St. Thomas between dying and healthy infants. 

2. Baptism of Abnormal Adults. 

The danger of culpable and effective perversion is 
greatly lessened by the general weakened condition of 
the mental powers of abnormal adults. If the in- 
sanity is from infancy and habitual, the subject is in 
the same mental condition as an infans. But the de- 
gree of abnormality, relative to Baptism, must be 
judged on the basis of whether the subject is capable 
of committing a morally imputable grave sin or not. 
If the person never had this amount of reason, he is 
habituahiter amens, but this state must have begun 
before the attainment of the use of reason, and last 
until death. If, however, at any period of his life, he 
had, or at present has, or is likely to obtain this use 
of reason, the canons regarding infantes cannot be ap- 
plied. Such conditions are facts, and thus must be 
proved and not presumed. ‘They are not entirely 
adults, nor imfantes, but midway between these two 
classes. Hence, the Code contains a special canon con- 
cerning them, as follows: 


1. Amentes et furiosi ne baptizentur, nisi tales a 
nativitate vel ante adeptum rationis usum 
fuerint; et tune baptizandi sunt ut infantes. 

2. Si autem dilucida intervalla, dum mentis com- 
potes sunt, baptizentur, si velint. 

3. Baptizentur quoque, imminente periculo mortis, 
si, antequam insanirent, suscipiendi baptismi 
desiderium ostenderint. 

4. Qui lethargo aut phrenesi laborat, vigilans tan- 
tum et volens baptizetur; at si periculum mortis 
impendeat, servetur praescriptum par. 3.*% 


48 Canon 754. 


BAPTISM 39 


1. Rare Cases. 

An Instruction of the Propaganda, April 17, 1777, 
gives much practical guidance in rare cases. It di- 
rectly concerns amentes and children of four or five 
years, who either certainly or doubtfully perceive the 
principal mysteries of faith. The ultimate test, al- 
ready’ cited, is that they know the difference between 
good and evil, and be capable of sinning. 

(a). It can be morally certain that the persons in 
question have such a faculty, in which case the rule of 
St. Thomas is applied, namely, they are adults in ref- 
erence to Baptism. 

(b). It can be morally certain that they do not enjoy 
such a faculty, in which ease distinctions have to be 
introduced: either (i) it is prudently judged to be a 
perpetual lack of the amount of reason in question, and 
then the subject is always an infans; or (ii) there is 
hope of the faculty coming in the future, in which case 
a further distinction is introduced: either (a) the sub- 
ject is in danger of death, and can be baptized without 
scandal, the doubt being solved in favor of the Chris- 
tian religion and faith, and the spiritual salvation of 
the one to be baptized, i.e., Baptism is to be adminis- 
tered; or (b) there is no danger of death, in which 
case more certain signs of reason are to be awaited. 

(c). The matter can remain wholly doubtful and 
uncertain, in which case, if necessity does not urge, 
the minister can and must wait for more suitable and 
greater knowledge; but if necessity urges, then in case 
of doubt, ‘‘inclinandum in favorem religionis et fidei 
christianae, et spiritualis salutis baptizandi.”’ 

The same Instruction also declares that it is shame- 
ful negligence to disregard such persons, but caution 
must be used in the avoidance of danger to the public 
good of Catholics.* 


49 Ad II, Coll., no. 522. (The substance of this important Instruc- 
tion is given in the text.) 


40 BAPTISM 


2. Habitually Insane. 

No restrictions are placed in the case of the habit- 
ually insane; they can always be licitly baptized, with 
or without the discrimen required in the case of in- 
fants of infidels. 

3. Those with Lucid Intervals and Insane arrEr the 
Use of Reason. 

Those who had or have lucid intervals, or became 
insane after the use of reason, are to be baptized if 
they wish it, while they are of sound mind. The only 
condition demanded, when they are in danger of 
death, is that baptismi desiderwwm ostenderint. It is 
obvious, however, that the third section of the canon 
is concerned only with those who are actually insane 
at the moment of death, antequam insanirent. The 
second section of the same canon covers the case of 
those who have lucid intervals, but at the time of the 
ministration of the priest are sus compos. The second 
section only expressly refers to the intention of Bap- 
tism, but in harmony with canon 752, and many past 
responses of the Holy See, the conditions in that canon 
will have to be satisfied in so far as possible. This 
will be treated in greater detail under the following 
section. Extreme caution, however, is necessary, due 
to the weakened mental condition of the subject, the 
circumstances, and the danger of lapsing into insanity 
in bad faith. 

The case of those who are insane when they are 
dying is more difficult. Obviously in this hypothesis, 
present signs will have little rational meaning, hence 
the third section of the canon, unlike the third section 
of canon 752, refers not to a past or present sign, but 
‘‘si, antequam insanirent, suscipiendi baptismi desi- 
derium ostenerint.’? But whereas canon 752, par. 3, 
demands ‘‘vel antea vel in praesenti statu manifesta. 
vertt aliquo probabili modo intentionem illum suscipi- 


BAPTISM 41 


endi,’’ canon 754, par. 3, is satisfied with a desire. A 
desire is less in the psychological order than an inten- 
tion, as the former is the beginning of the act of the 
will, whereas the latter is its completion. The reason 
of this distinetion probably can be found in the effects 
of insanity, which weakens the whole mental equip- 
ment, especially the will. But the will is the seat of 
both intention and rational desire. Hence, much less 
positive formal proof seems to be required in the case 
of the abnormal for the fulfillment of the canon. If 
even this minimum of evidence cannot be obtained, 
the grounds for applying the general presumption in 
the second chapter regarding intention seem to be ex- 
tremely slight. Insanity is mental death, but is not 
preceded by the same mental attitude as physical 
death, that is, the circumstances preceding the latter, 
such as the close approach of eternity, and dread of 
punishment, love of God, ete., are presumed to give 
rise to an act of at least attrition, but these are all ab- 
sent in the case of the former. One rarely knows that 
insanity is coming nor believes the verdict of the best 
doctors, but death is more certain and awe-inspiring. 
Some authorities, however, permit conditional Bap- 
tism even in this case.*® 

4. Coma and Delirwum. 

High fevers are usually accompanied, even in the 
ease of those who have been normal all their lives, by 
a period of temporary mental derangement. Coma is 
equivalent to unconsciousness, and may’ endure until 
the actual death of the subject in some diseases. De- 
lirum tremens, and suchlike conditions, would seem 
likewise to fall under the fourth section of the present 
canon. The ordinary rule is that such persons can be 
baptized, only on the suspension of these conditions, 


49 Vermeersch-Creusen, II, no, 36; Genicot, Inst. Theo. Mor., II, 
no. 150. 


42, BAPTISM 


sufficiently at least to permit of advertence and the ex- 
pression of an intention. Obviously, canon 752 will 
have to be satisfied to the fullest extent possible under 
the circumstances. If, however, they are in danger of 
death, the only condition with which this discussion is 
concerned, the third section of the present canon will 
find application. But in regard to the general pre- 
sumption in chapter two, there is a difference. Psy- 
chologists and physicians teach that very often in a 
subject in the state of coma, consciousness may be 
present internally, which it is impossible to manifest 
externally. In the case of delirium in high fevers, a 
minimum of rationality is possibly present so as to 
satisfy the general presumption. Delirium tremens, 
however, is caused by such over-indulgence as to ex- 
elude the probability of the general presumption in 
the moment of death, unless there is ground for think- 
ing that sufficient consciousness is present to elicit 
the acts necessary to satisfy it. However, on the basis 
of this possibility at the moment of death, and some 
slight probability of canon 754, par. 3, being satisfied, 
conditional administration of the Sacraments seems 
permissible.*° 

3d. Baptism of Dying Normal non-Catholic Adults. 

The canon of the Code reads as follows: 


1. Adultus, nisi sciens et volens probeque instruc- 
tus, ne baptizetur; insuper admonendus ut de 
peceatis suis doleat. 

2. In mortis autem periculo, si nequeat in praeci- 
puis fidei mysteriis diligentius instrui, satis est, 
ad baptismum conferendum, ut aliquo modo 
ostendat se eisdem assentire serioque promit- 
tat se christianae religionis mandata servatu- 
rum. 

3. Quod si baptismum ne petere quidem queat, sed 


50 Cfr. Vermeersch-Creusen, II, no. 36, 5, 37. 


BAPTISM 43 


vel antea vel in praesenti statu manifestaverit 
aliquo probabili modo intentionem illum susci- 
piendi, baptizandus est sub conditione; si deinde 
convaluerit et dubium de valore baptismi collati 
permaneat, sub conditione baptismus rursus 
conferatur.”’ 


A. Historica SURVEY. 
1. Introduction. 

It would seem that until comparatively recent times 
legislation which expressly deals with dying non- 
Catholics concerns only those who in some manner 
formally converted to the Catholic religion, or at most 
those who have given some sign of their intention. 
The testimonies touch those who are destitute of their 
senses, and give some sign, hardly the third class, who 
gave no sign. But, on the other hand, this is likewise 
true of the present Code. Theologians have taught 
and continue to teach today that the general presump- 
tion as outlined in the second chapter permits of the 
possible administration of the Sacrament of Baptism 
to such. 

2. Sacred Scripture and the Apostolic Fathers. 

Our Lord gave a general command to His Church, 
‘*Going therefore, teach all nations, baptizing them.’’* 
The mission is not to baptize all men, but to teach first 
and then baptize those that believe.** Thus, St. Peter 
instructed Cornelius,** Philip the Samaritans and 
the eunuch,” and, in fact, St. Luke’s Gospel is said by 

51 Canon 754. 

52 Mt, XXVIII, 19. 

53 Mt. XXVIII, 19; Mk. XVI, 16; Cfr. John VI; 66 (divine call) ; 
Roms. X, 17; I Tim. II, IV; St. Augustine, De gratia et libero arbi- 
trio 14, 29 (R. de J., no. 1940) ; De correptione et gratia 7, 12 (R. de J., 
no. 1946) ; Contra Julianum 4, 8, 44 (R. de J., no. 1906). 

54 Acts X, 33, 34-37. Cfr. instruction before baptizing after the 
descent of the Holy Ghost, Acts II, 14-35, but they had to do penance 
first, 38, but were baptized on that day, 41. 

55 Acts VIII, 5-6, 12-13. 


56 Acts VIII, 36-38. The instruction was very short, but the request 
is express. 


44 | BAPTISM 

some to be the first written catechism for Theophilus.” 
In many cases contained in Sacred Scripture, the in- 
struction was quite short.** A profession of faith and 
renunciation of evil is expressly mentioned in Sacred 
Scripture, and certainly implicitly contained in many 
passages.” 

St. Justin Martyr requires persuasion and belief,” 
conviction and assent,” profession of faith and re- 
nunciation of evil“ for Baptism. The Pastor Hermas 
tells of those who wish to be baptized, but are un- 
chaste, and so draw back.” 

Thus far, no specific testimony can be adduced to 
cover the case of dying non-Catholics. But the ele- 
ments demanded for the licit administration of Bap- 
tism are clear, with a possibility of contracting these 
in extraordinary cases and necessity. 

3. The Post-Apostolic Fathers. 

Tertullian considered hasty reception of Baptism 
irreverent,” and in common with St. Clement of Alex- 
andria ** demanded a penitential period of prepara- 
tion.” The profession of faith and renunciation of 
evil are still further emphasized.“ Tertullian distin- 


57 Luke I, 3-4: “It seemed good to me also . . . to write to thee 
in order . . . that thou mayest know the verity of those words in 
which thou hast been instructed.” Thus, it would seem that the Gospel 
was intended for the further instruction of Theophilus after Baptism. 

58 E.g., v.a. Acts XVI, 18: (Lydia) ; I Cor., Il.4) 4) 6s Ties 
Acts IX, 18 (Baptism of St. Paul). 

59. Acts VIII, 31 (the eunuch); XXIT, 16 (St) Paul) =) xX Viitbee 
Se pesivest jailer) ; XIX, 5 (no mention of request). 

I Cor., 1, 12-16, etc. 

a A pol. 61: R. de J., no. 126. 

62 Apol. 65; Re dev .2n67 128: 

63 Apol. 61. 

64 Bk. II, Vis. III, 8; MPG, 2, 906-908. 

65 De Bapt., 20; MPL, 1, 1222-1224. 

66 Strom., 6, 15; MPG, 9, 339-353. 

67 De Bapt. 20, 1-4; Kirch, no. 198. 

67 Sy Irenaeus, Adv. Haer. 3, 12, 8; MPG, 7, 902 Tertullian, De 
Bapt. 6; MPL, 1, 1206; De Idol. 8; MPL, af 639- 640; De Corona A 
R. aete no. 367: De Spect. 4; MPL, 1, 635- 636; Hippolytus, Phil. IX, 
10; ANF, V, p. 132-133; (the last testimony is "quite detailed, but the 
work is of doubtful authorship). 


BAPTISM 49 


guished solemn and private Baptism, directing the for- 
mer to be given only at Easter and Pentecost, but 
permitting the latter to be administered in necessity 
even by the laity. St. Clement of Alexandria gave 
the reason for demanding intention ‘‘for God compels 
not’’ as it is repugnant and derogatory to Him to do 
so. But in the view of Tertullian, intention and 
reverence for the Sacrament are so overemphasized 
as to lead him to refuse Baptism to infants.” 

There is a growing tendency, probably due to the 
influence of Marcion, whereby certain classes are ex- 
cluded from Baptism, but even he is willing to admit 
them on their deathbed.” The most interesting testi- 
mony of this period is in the complaint of Hippolytus 
that Pope Callistus admitted even ‘‘lascivious and 
wicked,’’ ‘‘if only any of them be a believer.’’ This 
writer was a violent adversary of the Pope, so that in- 
terpreted in an orthodox sense, it probably means that 
the Pope was willing that no one should be excluded 
from Baptism, merely because he had been a very 
grave sinner in the past. 

4, The Councils. 

The council of Elvira (305) excludes no willing un- 
baptized person, although for some it reserves Bap- 
tism until they are dying, e.g., famines, those troubled 
with evil spirits, a meretrix, a catechumen guilty of 
adultery and abortion.“* This council permits any 
fidelis to administer Baptism in necessity, but excludes 
an apostate, which represents a compromise with the 
schismatics.” The council of Arles (314) is willing to 

68 De Bapt. 20; MPL, 1, 1222-1224. 

69 De Bapt. 17; Kirch, no. 197. 

70 Quis dives salvetur? 10; MPG, 9, 614. 

71 De Bapt. 18, 10-14; Kirch, no. 197. 

72 Tertullian, Contra Marcion 4, 11; MPL, 2, 380-383. 

73 Refut. 9, 7; MPG, 17, 3386. Cfr. Tertullian, De Pudicitia 1, 
MPL, 2, 980. 


74 Cfr., 11, 37, 39, 42, 44, 69, 38, Hef.-Lecq., I, 221. 
Tah) atc. e 


46 ; BAPTISM 


admit all who credere volunt.” The first ecumenical 
council of Nice I (325) raises no objection to these 
canons, although it expressly cites a canon of the 
council of Arles in at least one instance. It seems, 
then, that the practice of not denying Baptism to any 
person who was dying and wishing to receive it, even 
though they had been public sinners, was already well 
established. 

The subsequent local councils and writers discuss 
the kind of manifestation of consent required, and 
other incidental questions. In a council of Hippo 
(393), it is enacted that if relatives testify for the de- 
sire of those sick and unable to speak any longer, they 
are to be baptized,”* which was repeated in Carthage 
IV (397). Although not necessarily representing very 
extensive practice, it is found in the Decretum Gra- 
tiant (1140-1150): ‘‘Egrotantes, si pro se respondere 
non possunt, cum voluntatis eorum testimonium sui 
dixerint, baptizentur. Similiter et de penitentibus 
agendum est.’’® This testimony is truly remarkable. 
(Canons of the council of Orange (441) enact, one be- 
coming suddenly dumb may be baptized if he indicates 
his wish by signs, while there is no mention of any 
sign in the case of those possessed, and to those who 
have lost their reason ‘‘all the blessings of religion 
shall be granted.’’*° The council of Laodicea (343- 
381) regulates cases in which very little instruction 
was given as these dying persons on recovery shall be 
made to learn the Creed by heart, and to understand 
the gift bestowed on them.* 

4. Conclusions Regarding This Early Period. 
Sufficient testimony has been adduced to indicate 
76 ~c. 6, Hef.-Lecq., I, 280. 

77 ¢c.13; Hef.-T., I, p. 420; c.128, D. IV, de consec. 

78 Hoppi, c. 32, Hef.-T., I, p. 407-8; Mansi, III, 851; Carthage, IV, 


c. 75, for Penance, orders the giving of the Holy Eucharist on this. 
79 c.75, D.IV, de consec. 


80 cs. 1, 3, 12, 13, 14, 13, 40; Hef.-T., III, p. 160-162. 
St. c 47; Het.<T.. 1],19;/331, 


BAPTISM 47 


the spirit of the Church. While it is true that much of 
it is oriented by local details, there remains sufficient 
evidence for the statement of the attitude on essen- 
tials. In the case of any! kind of dying non-Catholic, 
irrespective of the past, evidence of the desire alone, 
even through others, sufficed in extreme cases. Local 
abuses, referred to in an earlier section, did exist in 
Spain and in Paris, but the principle that no one can 
be compelled to receive Baptism is clearly stated in 
the case of Jews in the ecumenical council, Nice I! 
(787). St. Augustine stated a principle, which strictly 
speaking, seems to refer to catechumens, who passed 
into unconsciousness without giving any very definite 
signs: ‘‘Catechumenis ergo in huius vitae ultimo con- 
stitutis, seu morbo seu casu aliquo si compressi sint, ut 
quamvis adhuc vivant, petere sibi tamen baptismum vel 
ad interrogata respondere non possint, prosit lis quod 
eorum in fide christiana iam nota voluntas est, ut eo 
modo baptizentur, quo modo baptizantur infantes. 
Non tamen propterea damnare debemus eos, qui timid- 
ius agunt quam nobis videtur agi oportere 
Baptizare non audent eos, qui pro se respondere nequi- 
verint, ne forte contrarium gerant voluntatis arbit- 
rium. . . . Sed non solum incredible est nec in fine 
vitae huius baptizari catechumenum velle, verum 
etiam, si voluntas ews mcerta est, multo satius est 
nolents dare quam volenti negare, ubr velit an nolit 
sic non apparet, ut tamen credibilius sit eum, si posset, 
velle se potius fuisse dicturum ea sacramenta perci- 
pere, sine quibus iam credidit non se oportere de cor- 
pore exire.’’® 
6. The Corpus J URIs. 

The Corpus Juris contains a summary of the past.*® 
The subject is expected first to accept the rudimentum 





82 De adult. conjug. 1, 26, 33; R. de J., no. 1862. 
83 c. 74, 75, 77, D. IV, de consec. 


48 BAPTISM 


fidei,* elsewhere identified with the learning of the 
symbolum fider.” He is, however, not to be driven to 
Baptism by sharp words, and violence is not to be used 
on the Jews.*" Only parvult are exempt from the re- 
quirement of penitence for past sins.*’ The intention 
of the subject is absolutely required for validity, but 
in this connection the words of Pope Innocent III are 
cited, which have given rise to much controversy.® 
This desire, however, can be manifested through 
others.* 

7. Modern Times. 

The spread of missionary activity gave renewed 
occasion for the application of the practices of the 
past. In pagan lands, many difficulties arose in regard 
to the amount of instruction, intensity of sorrow, pur- 
pose of amendment, and especially the nature of the 
intention and its manifestation. 


B. Tur Present Law. 


I. Cases of Formal Conversion. 

Canon 752, par. 1 and par. 2, states the general law 
for cases of dying non-Catholics, who formally con- 
vert in some manner. The danger of death is not in 
itself a sufficient reason for reducing the usual require- 
ments for the licit and valid administration of Bap- 
tism on an adult. The Code, in the first paragraph of 
the canon cited, states a general rule, which obliges 
(ne baptizetur), if morally possible, to the degree in 


84 c.54, D.IV, de consec. 

85 cs. 58, 59, D. IV, de consec. 

86 cs. 93, 94, D. IV, de consec.; cfr. cap. 9, X, De Judaeis, Saracenis, 
et eorum servis, V, 6. 

87 c.95, 96, 97, D.IV, de consec. An abstinence of forty days is 
imposed on Jews before Baptism, c. 98, but penitence is not absolutely 
necessary for Baptism, c. 99, Ibid. 

88 c.3, X, De Baptismo et eius effectu, III, 42. Pope Benedict XIV 
in the postremo mense refutes cajetan’s use of this passage to establish 
his opinion concerning a neutral intention (Opera Tom. XVI, p. 185, 
Postremo mense, February 28, 1747, nos. 48, 49). 

89 c.75, D. IV, de consec. 


BAPTISM 49 


which it is morally possible, and must be observed, 
even in the case of the dying.*° But added to this 
physical condition of danger of death are usually other 
aggravating circumstances, e.g., proximity of death 
itself, considerably lessened keenness of mental capac- 
ity in the grasping of spiritual realities and truths, 
even a diminished facility in the eliciting of volitional 
acts, ete. In a word, suffering or general lowered men- 
tality, and external interferences grow with the dying 
condition to moral and eventually physical impossi- 
bilities. The Church in her canons makes due allow- 
ances for all these circumstances. 

1. Normal Requisites. 

An adult is not to be baptized, unless he is knowing 
and willing, and properly instructed; in addition he 
must be warned to be sorry for his sins. The term 
‘“‘adult’’ is understood in the sense already explained.” 
The reception of Baptism is in the case of an adult a 
most solemn and important rebirth into Christian so- 
ciety, and not a mere external rite. Hence, it de- 
mands all the requirements for a full rational act. 
This involves full knowledge and advertence as re- 
gards the act itself. Full consent of the will must also 
be present, as it is not an external mark of internal 
beliefs. But the act of the will, which in itself is a 
blind faculty, demands knowledge of the content of 
the obligation undertaken, both in regard to belief 
and moral precepts to be observed. The will only acts 
rationally to the extent that it is motivated by the in- 
tellect. The reception of Baptism marks the incorpo- 
ration of the subject into the most perfect society 
given to men, which carries with it obligations in re- 
spect to the past and the future life. No actual sin is 

90 Genicot, Inst. Theo. Mor., II, no. 149-150. 


91 Canon 752, no. 1. 
92 Cfr. chapter IT, no. 1. 


5O BAPTISM 


forgiven without some kind of sorrow, nor is a new 
life seriously embraced without due resolution being 
made to live up to its mandates for the future. Hence, 
at least attrition for past actual sins and a resolution 
in respect to the future will also be required. 

2. Moral Impossibility. 

(a). Danger of death—The person must be in dan- 
ger of death, from any cause whatsoever, that there 
be a lessening in the usual requirements. But this 
circumstance will not suffice in itself, as the Code also 
demands that fuller instruction be given, unless it be 
morally impossible.** 

(b). Intention.—An express desire of receiving Bap- 
tism is demanded for the certain validity of Baptism.** 
If possible, this must be positively and externally 
stated in unmistakable terms. The Church also re- 
quires for the liceity but not the validity of the Sacra- 
ment, that the subject be advertent and attentive to 
what is taking place. There is some concession even 
on these points in responses of the Holy See. The in- 
tention must contain some positive elements, in these 
circumstances, although it may remain, due to moral 
impossibility, doubtful in content. If possible, 
this intention must be actual, but if this is morally 
impossible, it is sufficient for licit administra- 
tion that it be ‘‘if not actual, at least virtual, and 
interpretative, as the theologians call it . . .7?% 
A purely superstitious or temporal intention is not 
sufficient while there is time to instruct, but in case 


) 


93 Canon 752, no, 2: “. . . si nequeat in praecipuis fidei mysteriis 
diligentius instrui” . . . 

94 Cfr. Instr. S. C. S. Off., August 3, 1860, Coll., no. 1198, which 
contains a summary of the conditions required: S. C. S. Off., May 10, 
1703, Coll., no. 256. Cfr. also, Lehmkuhl, Theo. Mor., II, no. 77; Cap- 
pello, De Sacrs., I, no. 155, 85. 

95 Add to preceding, S. C. S. Off., April 10, 1861, Coll., no. 1213; 
S. C. S. Off., March 30, 1898, Coll., no. 1993; S. C. S. Off., September 
18, 1850, Coll., no. 1050. 

96 Instr. S. C. S. de Prop. Fide, May 8, 1779, Coll., no. 534. 


BAPTISM aH 


there is not, no official response exists which pre- 
vents action on such an intention, in the face 
of impossibility of securing more definite infor- 
mation.*” It will not be sufficient for valid Baptism, 
if the purely superstitious intention is the principal 
one, and there is a positive exclusion of the right 
intention. But if further information cannot be ob- 
tained, some intention, although doubtful, is present, 
and Baptism must be administered conditionally. 
Where there is doubt about the existence or nature of 
the intention, or the fact or validity of a possible pre- 
vious Baptism, the conditional form must be used.** 

(ce). Instruction—There is a distinct concession in 
the canon itself in regard to the fulness of instruction 
necessary. If it is morally impossible to give a more 
diligent instruction in the principal mysteries of the 
faith, it is sufficient, in danger of death, that the sub- 
ject show in some way he assents to them. The more 
diligent instruction in the mysteries can be omitted, 
but not some little instruction, as some knowledge of 
them is required, so that the subject ostendat se 
eisdem assentire. The words praecipuis fidei mys- 
tervis seem to mean something more than those neces- 
sary, certainly or probably, by necessity of means. In 
past responses of the Holy See concerning Baptism, 
two phrases are found, praecipua and mysteria 
necessariae necessitate medu. In one response, 

97 S.C. S. Off., March 8, 1776, Coll., no. 477; but cfr. Const. Alex. 
VII, January 18, 1658, XV, Coll., no. 129. 

98 Cfr. canon 752, no. 3, and 732, no. 2. 

99 E.g., in a response of S. C. S. Off., March 8, 1770, Coll., no. 477, 
the missionary is warned to instruct an adult in the rudiments of the 
Faith, even if he is old, which is to be repeated on recovery. In the 
response, S. C. S. Off., January 25, 1703, ad 2, Coll., no. 254, explanation 
of “mysteria fidei quae sunt necessaria necessitate medii, ut sunt prae- 
cipue mysteria Trinitatis et Incarnationis’” was demanded. The term 
“principal mysteries” is used in an Instruction S. C. de Prop. de Fide, 
May 8, 1779, Coll., no. 534, and S. C. S. Off., May 12, 1830, Coll., no. 
813. Finally, an Instruction has according to the capacity of the indi- 
vidual, Instr. S. C. Off., August 3, 1860, Coll., no. 1198, but in doubt 


Baptism is to be conferred; cfr. also S. C. S. Off., April 10, ad 1, 1861, 
Coll., no. 1213. 


52 BAPTISM 


the former includes explicit belief in Our Lord 
and the positive moral precepts of the di- 
vine law,’ but the general signification seems 
to involve instruction according to the mental 
capacity of the subject, in so far as is mor- 
ally possible under the circumstances.*" Controverted 
points, which do not involve an error on the funda- 
mental truths, which are likely to change the good faith 
of the subject into bad, can be avoided. Thus, in the 
case of dying Masons, a previous response conceded, 
where further instruction or demands would not be 
productive of good results, and the dying man is bona 
fide, it is sufficient that he be exhorted to assent in a 
general way to the mandates of the Church” Again, 
in an exceptional case, where there was danger of turn- 
ing the good faith of a dying savage, previously in- 
structed by Calvinists, into bad, the reading of the 
Apostles’ Creed in his presence with his assent to it 
sufficed, as far as the instruction is concerned. But 
it is quite clear that rational assent to truths under- 
stood according to the mental capacity and not mere 
affirmation to please the minister, ete., is required. 
The promise of receiving instruction in the future will 
not in itself suffice, except where the person is wholly 
mcapax, but in the extreme case instruction in the bare 
essentials will suffice, e.g., the mysteries of the Blessed 

100 S.C. S. Off., May 10, 1703, ad 2 et 3, Coll., no. 256. 

101 Even in case of catechumens in good health, the missionary need 
only enter into those details, which prudence permits, S. C. de Prop, 
Fide, September 12, 1645, XIII, Coll., no. 114. In the response S. C. S. 
Off., May 10, ad 1, 1703, Coll., no. 256, concerning the dying as well, 
the adult must understand and believe iuxta propru captus mensuram. 

102 S.C. S. Off., July 8, 1874, Coll., no. 1419: “ . .- sufficere quod 
in genere hortentur ut se sincere subiiciant ecclesiae auctoritati, atque 
mandatis S. Sedis, deinde baptizari atque absolvi possint.’ Cfr. Reuter- 
Lehmkuhl-Umberg, Neo-Confessarius, nos. 203, 218. 

103 S. C. S. Off., January 27, 1892, Coll., no. 1780; cfr. S. C. S. Off., 
April 10, 1861, ad 1, Coll., no, 1218: “ : 9.) dummodo iisdem fidei 


mysteriis vel simplici oris affrmatione, vel nutibus saltem, ostendant se 
consensum praebere,” 


104 S.C. S. Off., May 10, 1703, Coll., mo. 256. 


BAPTISM : Hd 


Trinity, the Incarnation, and the Redemption.*% The 
obligation of fuller instruction on recovery remains.’ 
Since the Creed seems to contain the principal mys- 
teries, as distinguished from those necessary by neces- 
sity of means for salvation, the canon would be satis- 
fied by assent to it with some explanation. If pos- 
sible, it would seem that enough should be imparted to 
the dying person to give him at least a confused no- 
tion of Christianity in general, and more or less defi- 
nite ideas on the truths necessary by necessity of 
means. This will depend on circumstances and the 
mental capacity of the individual. 

(d). Assent.—It is sufficient that the dying person 
show in some manner that he assents to them. In hu- 
man affairs, especially in the case of the dying, such 
assent can be made by simple affirmation in words 
which indicate that one accepts what is presented, or 
by equivalent signs, e.g., a nod, sigh, ete. In a word, 
anything that in some way shows that he accepts the 
truths presented will suffice. A hearing of what is 
said, without necessarily grasping intellectually more 
than the fundamentals, is sufficient. 

(e). Promise for the future.—A serious promise is 
required in regard to the mandates of the Church, and 
their future observance. This promise again involves 
a knowledge, at least in essentials, on the general prin- 
ciple, Nihal volitwm, quin praecogmtum. It is, how- 
ever, principally concerned with the future rather than 
the past. The knowledge can be very general and 
confused, in accordance with the circumstances. But 
the Church does not wish the immaculate law of Christ 


105 S. C. Off., January 25, 1703, ad 2, Coll., no. 254: “Non sufficere 
promissionem. . . .” 

Mite. OT, March 8,.1770, Coll,. no).477s | aus. et! si senés 
tardiores memoria fuerint, iteratis instructionibus eorum  succurrant 
imbecillitati.” In the case of deaf-mutes who are in danger of death: 
“Curent . . . autem missionarii eo meliori modo quo possunt, ut eos 
postea mysteria saltem principilia edoceant, . . .” S. C. S. Off., De- 
cember 11, 1850, ad 1, Coll., no. 1054. 


54 BAPTISM 


to be confounded with idolatry or gentile institutions, 
which are out of conformity with the natural law.*” 
Idolatry will have to be absolutely removed, because 
it is in conflict with the fundamental truths necessary 
for salvation. Polygamy and similar practices will 
also have to be given up.’ But if the danger of death 
is proximate, provided the subject is in good faith, and 
bad faith will probably follow, past responses seem to 
give ground for omission of specific warning in these 
matters.’ If one is living in a necessary occasion of 
sin, which is beyond the power of the subject to re- 
move, in proximate danger of death, he may be bap- 
tized. A special disposition of mind was required in 
a case of girls desponsatae to infidels or polygamists, 
which illustrates this point. Baptism can be conferred 
in danger of death: ‘‘. . . ob peculiares circumstan- 
tlas gravesque causas . . . omnino requiritur talis 
elus animi dispositio, ut, si dispensari nequeat, potius 
mori velit, quam sacrilegum irritumque matrimonium 
contrahere.’’*° Thus, in danger of death, the intention 
will suffice, which finds expression in a serious promise. 


II. Cases in Which the Intention Is Manifested in 
Some Probable Manner. 
Canon 752, par. 3, states the general law for such 
cases. 
1. The Physical State of the Subject. 
The second section of the present. canon considered 
cases in which the subject is in danger of death, but. 


107 Const. Alex. PP. VII, January 18, 1658, XIV, Coll., no. 129. 

108 Instr. S. C. de Prop. F., October 18, 1883, XVII, Coll., no. 1606 
(for normal’ cases). Cfr. S: C.-S. Off., January 29, 1805, Coll., 680, 
which contains the case of a man who had sold his wife and illegiti- 
mately taken another; Baptism is permitted in grave infirmity, “privatus 
non maneat medio ad aeternam salutem tam necessario.” The Instr. S. C. 
S. Off., March 28, 1860, Coll., no, 1188, takes up the matter in detail, 
which concludes, “sive polygamus, sive concubinae omnino a statu forni- 
cationis recedere debunt. . . .” 
_ 109 Instr. S. C. S. Off., June 20, 1866, Coll., no. 1293, polygamists 
in the hour of death, if disposed. 

110 Instr. S. C. S. Off., June 20, 1866, II; : Coll, no.712938. 


BAPTISM 5D 


with whom the minister can communicate. The third 
embraces cases in which the subject is dying, but can- 
not communicate with the minister in any certain man- 
ner, ‘‘if he cannot even seek Baptism. Payioe hie 
distinguishing factor is not pertculum mortis, which is 
obviously presupposed, but the physical impossibility 
of certain communication between the minister and the 
subject. This may be due to causes primarily arising 
from the state of the subject or the minister. Thus, 
destitution of the senses on the part of the subject 
will satisfy the conditon..* Examples of such cases 
on the part of the minister are also given in past re- 
sponses of the Holy See, e.g., deaf mutes may be bap- 
tized by a minister who is totally ignorant of the 
sign language, if they give aliqua signa religionis, or 
are unable to make any definite sign, a minister may 
baptize a person of whose language he is totally 
ignorant.” 
2. The Intention. 

The canon uses the terms intentionem illum susci- 

111 S.C. S. Off., March 30, 1898, ad 3 Coll., no. 1993. The parallel 
with canon 752, no. 3, is very striking: 

1898 and 1850. 


“Si antea dederint signa velle 
baptizari, vel in praesenti statu aut 


Canon 752, no. 3. 
“Quod si baptismum ne petere 
quidem queat, sed vel antea vel in 


nutu aut alio modo eamden disposi- 
tionem ostenderint, baptizari posse 
sub conditione, quatenus tamen mis- 
sionarius, cunctis rerum adiunctis 


praesenti statu manifestaverit ali- 
quo probabili modo intentionem il- 
lum suscipiendi, baptizandus est 
sub conditione; si deinde conva- 


luerit et dubium de valore baptismi 
collati permaneat, sub conditione 
baptismus rursus conferatur.” 

The differences are worthy of note: 

1. In the 1898 response a distinction is introduced between the evidence 
from the past (signa), and the present (alio modo); in canon 752, no. 
3, the evidence from the past and the present are placed on the same 
footing (aliquo modo probabili) ; 

2. In the 1898 the possibility of baptizing conditionally was conceded 
to the missionary, and the final judgment in the matter left to his pru- 
dent judgment; in canon 752, no. 3, an obligation is imposed. 

The 1898 response concerned the case of one who was a Mohammedan, 
which also is very significant. 

112 S. C. S. Off., September 18, 1850, Col., no. 1050 (Ignorance of 
language). S. C. S. Off., December 11, 1850, ad 1, Coll., no. 1054 
(Deaf-mutes). 


inspectis, ita prudenter iudicaverit.” 


56 BAPTISM 


piendi. . . . Hence, any kind of intention suffices, 
with only one qualification as to its content, namely, 
that it be an intention of receiving Baptism. Specula- 
tions on the possible content of such an intention, 
manifested aliquo modo probabili, are not considered 
by the canon. Provided that the man furnishes the 
requisite evidence of receiving the Sacrament of Bap- 
tism, he must be baptized conditionally. Under the 
circumstances there is a lack of actual knowledge in 
regard to the content or form of the intention, which 
only the actual facts and no amount of theological 
speculation will supply. Theories on the kind of in- 
tention required will find place si deinde convaluerit. 
The danger of forcing Christianity on the dying man 
is taken care of by the manifestation of some kind of 
intention. | | 

The minister need know nothing concerning the re- 
ligious faith of the dying subject. If there is the re- 
quired amount of evidence concerning the intention, 
ie., its existence, not its content, the canon imposes 
an obligation of baptizing him conditionally. This is 
quite clear from a comparison of the present canons 
and past responses.’ Thus, an adult Mohammedan, 
who became destitute of his senses nihil prorsus et di- 
cendo . . . baptizart posse sub  conditione, if 
somewhat similar conditions to those contained in the 
third paragraph of the present canon are satisfied. 
But a final clause was added that this should be done, 
if, considering the circumstances, the missionary ita 
prudenter judicaverit.* This evidently was the estab- 
lished norm, as an older decree of the Holy Office, con- 
cerning negroes, placed under similar circumstances, 
is cited.** The present canon uses clauses which dif- 
fer slightly from the responses. But there is a great 
difference from viewpoint of obligation baptizandus 


113 S.C. S. Off., September 18, 1850, Coll., no. 1050. Cfr., S. C. S. 
Off., March 20, 1686, Coll., no. 230, ad 8. 


BAPTISM i af 


sub conditione replacing baptizari posse sub condi- 
tione and the final clauses. There is no question ot 
past life or creed, or future possibilities in the canon, 
but the existence of the intentio illum suscipiendt 
alone. The Baptism must be conditional, as due to the 
possible vagueness of the manifestation aliquo modo 
provabili, the Sacrament is of doubtful validity. As 
long as this condition of the subject continues, further 
enquiry will not throw much light on the validity of 
the Baptism conferred. So the canon prescribes that 
the enquiry de valore baptismi collati shall be made 
on the recovery of the senses or later. i} 
3. What Is a Sign? 

The response of 1898 used the term signum in refer- 
ence to the evidences drawn from the dying man’s past 
life, and for the present condition phrases capable of a 
much wider interpretation aut nutu aut alio modo... . 
The canon applies the final phrase to both the past 
and the present, but inserts the word probabili, 1.e., 
aliquo modo probabili,.and possibly somewhat further 
limits this by the use of the verb manifestaverit. In 
human affairs, an express and precise statement is by 
no means demanded for the manifestation of an inten- 
tion, as it can be implicitly contained in some other 
action. Past responses provide examples relative to 
Baptism. Thus, it can be ‘‘aut nutu aut alio modo,” 
which the missionary ‘‘cunctis rerum adwunctis mspec- 
tis tta prudenter wudicaverit.’’** In the case of deat 
mutes with whom the missionary is unable to commu- 
nicate, it is ‘‘qui dant aliqua religionis signa. . . .’’* 
Or, in a pagan country, the rejection of idolatry of 
one’s free will.t® Membership in a Christian sect that 

114 S.C. S. Off., December 11, 1850, ad 1, Coll., no. 1054. 

115 Ibid., ad 2. In the question two conditions were stated; first, 
that they had rejected idolatry; and secondly, that they were not enemies 
of Christianity. In the response, the only condition mentioned is “in 


proximo et moraliter certo articulo mortis, et quod antecedenter abre- 
nuntiaverint idololatriae.” 


58 BAPTISM 


does not totally and absolutely reject the Sacrament 
of Baptism ought to create a presumption concerning 
the existence of an at least implicit intention. The 
question of its definite content, and sufficiency for val- 
idity can only be investigated in the actual case with a 
knowledge of the facts from the subject himself. 

III. Cases in Which There Is Absence of Knowledge 

Which Cannot Be Supplied. 

At the outset, the writer does not wish to invoke any 
greater certainty for the application of an at least ex- 
trinsically probable opinion in this particular section 
than was established in the second chapter. 

Cases may confront the minister in which he is left 
in the dark in regard to the intention of the subject. 
If he knew the dying person in the past, this lack of 
knowledge will not be so absolute. If some of the 
friends of the dying man are at the bedside, much in- 
formation can be obtained from them, with the use of 
prudence. In such instances, however, probably the 
aliquo probabil modo of canon 752, par. 3, can be 
satisfied. | 

If none of these factors will help in solving the diffi- 
culty, the case is altogether extraordinary, and pos- 
sibly no rule can be stated. In the abstract, there is a 
possibility of administering the Sacrament condition- 
ally, but extreme prudence and caution are necessary. 
Experts assert oftentimes persons, who are apparently 
dead and cannot communicate with those around them, 
understand what is taking place. Hence, in the hy- 
pothesis that they are opposed to the reception of Bap- 
tism, its administration may easily turn their pre- 
sumed good faith into bad. The methods and means 
of avoiding this must be left from their very nature 
to the prudence of the minister. 

Theologians and canonists extend the possibilities of 
administering conditional Baptism beyond that of the 


BAPTISM : ag 


canon, which states the obligation—the law—without 
reprehending the possibility of more extended ac- 
tion.“° Some authors point out that no response 
clearly determined the limits of possible action, or 
condemned more extensive views.” They were well 
known and taught before the Code, and so have lost 
none of their force since its appearance. The question 
was in regard to the obligation and not the probability 
of this opinion, among the pre-Code supporters of the 
view."* The Code is silent in the matter. The logical 
conclusion, then, is that the probability of the opinion 
remains, although there does not seem to be an obliga- 
tion of following it, and the whole matter is left to the 
prudence and tried zeal of the individual minister. 

In general, then, this difficult matter must be left, 
until greater certainty is had concerning the consid- 
erations outlined in the second chapter. 

IV. What Is to Be Done wm Case of Recovery? 

The Code states in Canon 752, par. 3: .{'. SL 
deinde convaluerit et dubium de valore Banners col- 
lati permaneat, sub conditione baptismus rursus con- 
feratur,’’ which must be taken in conjunction with 
Canon 732, par. 2: ‘‘Si vero prudens dubium exsistat 
num revera vel num valide collata fuerint, sub condi- 
tione iterum conferantur.’’ 

If the sick man recovers, the validity of the Sacra- 
ment, not its fruitful reception, is the subject of inves- 
tigation. If he had a positive intention to the con- 
trary, then it has to be conferred absolutely, provided 
the conditions required for this are fulfilled. In judg- 
ing this intention, however, the opinions of theologians 

116 Pepincoht, Theo. Mor., II, no. 78; Vermeersch-Creusen, II, no. 
35; Genicot, Inst. Theo. Mor., II, no. 450; Cappello, De Sacrs., I, no. 
159; Pesch, Prae Theo. Dogm., VI, no. 439 (who chides Suarez in this 
matter, but places the reservations already noted). 

117 E.g., Lehmkuhl, 1.c.; Genicot, 1. c. 


118 E.g., Lehmkuhl, 1.c.; it would seem that Lehmkuhl himself be- 
lieved in the existence of an obligation, 


60 | BAPTISM 


must be taken into consideration, so that if the dying 
man had sufficient intention to satisfy any opinion 
that has extrinsic support which renders it the basis 
of a prudens dubiwum, the conditional and not the ab- 
solute form must be used. Obviously, where the first 
or second paragraph of canon 752 are possible of ap- 
plication, doubt that would effect the validity must be 
removed before the Baptism is conferred. Only where 
the third section of this canon, or the possible exten- 
sion, which has been outlined, are applied should 
there ordinarily be room for a prudent doubt concern- 
ing the validity. A positive intention is required by 
many theologians for certain validity, and this must 
be the basis of the minister’s judgment after the re- 
covery. | 

The words of Pope Benedict XIV can well conclude 
this section: ‘‘Fieri enim potest (nec casus sane hic 
metaphysicus est) ut ipso in actu intentionem habuerit 
sufficientem, diabolicis deinde stimulis incitatus, et 
victus, ad vomitum rediturus mendacium proferat, et 
de intentione interrogatus nigrum pro albo, ut inqui- 
unt, repraesentet.’’*?® 

119 Postremo mense, February 28, 1747, no. 50, cfr. 51, which seems 
to have some bearing on the question, Opera, XVI, p. 186. “51.'Quod 
si nulla sit reliqua dubitatio, planeque constet hac luce clarius, adulto 
Baptismum accipienti nullam prorsus fuisse voluntatem, aut intentionem, 
nil restat aliud, quam eumden et hortari, et admonere, ut rite id faciat, 
quod jam irrito fecit, et suscipiat absolute, ac libere Sacramentum; ac 
si obstinate repugnet, tum nihil aliud superest, nisi ut remittatur. Si 
autem res in dubio sit, nec intelligi possit, an defuerit intentio, an suf- 


ficiens adfuerit necne, adultus tum retinendus, baptizandusque sub con- 
dittione: S. Thomas 3, par., q. 68, art. 7. ay 


CHAPTER IV. 
PENANCE AND DYING NON-CATHOLICS. 


1. Possipitity of ADMINISTERING THE SACRAMENTS. 


The Code contains a general norm, which embraces 
the ministration of the Sacraments to all classes of 
baptized non-Catholics: 


Vetitum est Sacramenta Ecclesiae ministrare 
haereticis aut schismaticis, etiam bona fide erran- 
tibus eaque petentibus, nisi prius, erroribus 
reiectis, Ecclesiae reconciliati fuerint.* 


The exclusion of Sacramental communication of 
heretics and schismatics is very ancient. Heresy in- 
volved positive error and contamination of the doc- 
trine of Christ.’ It placed groups and individuals out- 
side of the Church. Consequently, communication with 
them in such sacred relations as the administration of 
the Sacraments demanded was naturally regarded by 
the early Fathers and Christians as treachery to Our 
Lord. Schism, on the other hand, did not at first place 
its members completely outside of the Church. But 
the test of orthodoxy was externally manifested in 
sacramentally communicating with those alone who 
were in full accord with the apostolically founded 
churches. 

1. The Dogmatic Basis of the Canon. 

The divine law clearly forbids commumnicatio wm di- 

1 Canon 731, no. 2. 

2 Mt. XVIII, 17-18: “And if he will not hear the church, let him be 
to thee as the heathen and the publican.” The Didache, IX, 5 (R. de J., 
no. 6), states: “Nemo autem edat neque bibat a vestra eucharistia, nisi 
qui baptizati sunt in nomine Domini; de hoc etenim dixit Dominus: 
Ne date sanctum canibus.” St. Ignatius, dd. Phil. 1V (R. de J., no. 56) ; 
“Studeatis igitur una eucharistia uti. . . . .’; Ad Smy. VII, 1 (R.de 
J., no. 64) ; “Ab eucharistia et oratione abstinent, eo quod non confitentur 


eucharistiam carnem esse Salvatoris nostri Jesu Christi. . . .” Ete. 
Cfr. cs. 49, 131, 143, D. IV, de consec. ; 


61 





62 PENANCE 


vinis with all who are not fully in accord with the vis- 
ible Church. The reception of Baptism, it is true, 
makes one a subject of the Church, but full membership 
in the Church as a visible society demands much more. 
For the Church is the congregation of all the faithful, 
who profess the same faith, participate in the same 
Sacraments and Sacrifice, and are subject to their law- 
ful pastors, under the one visible head, the Pope. Any 
baptized person, not observing all of these conditions, 
although a subject of the Church, is in a state of defec- 
tion or rebellion. Now, the chief social bonds whereby 
the Church visible unites her members to herself and 
her spouse, Christ, are the Sacraments. The Church 
has never declared that validly ordained ministers, 
even though outside of her visible membership, admin- 
ister invalid Sacraments, but clearly asserted the con- 
trary principle against the Novatians and Donatists. 
Nor does she deny that those in good faith, even 
though outside of her visible fold, receive the Sacra- 
ments from these ministers validly and licitly. But 
both heretics and schimatics, even though invisibly 
within the Church, are externally and publicly outside 
of it. Hence, she must in virtue of the divine command, 
gravely prohibit her ministers communicating sacra- 
mentally with all in a public state of rebellion, culpably 
or inculpably. 

The Catholic Chureh absolutely condemns the 
Branch Theory. She, in virtue of her divine founda- 
tion, is the sole visible mystical body of Christ on 
earth. All other branches, even though they have 
validly ordained ministers who administer valid Sac- 
raments, are completely severed from the sole and 
only tree of Christ. But the Sacraments are placed 
absolutely in the hands of this one true Church of 


3 Cfr. Mt. XVII, 17-18; Lk. X, 16; Mt. X, 40: Mt. VII, 6. 


PENANCE 63 


Christ. She must guard zealously, protect, and de- 
fend them against irreverence. All sacramental grace, 
however, flows from Christ to men through her hands 
alone. But the Sacraments give grace ex opere opera- 
to non ponentibus obicem.t The only absolute obex 
for the reception of the Sacraments of the dead is a 
positive will to the contrary, and the lack of the condi- 
tions on the part of the subject required for validity. 
In the case of the Sacraments of the living, ordinarily 
this obex will be the absence of grace in the soul. But 
even a recipient, who is a heretic or schismatic, may 
provide the conditions required for the valid and for- 
mally licit reception of the Sacraments, as far as he is 
concerned. Hence, although the administration of the 
Sacraments to such is gravely illicit, the reception of 
them by him is neither formally nor sinfully illicit 
nor invalid on his part. In which case, the recipients 
receive the grace through the one true Church, and 
not any branch. In a.word, the condition or state of 
the minister, apart from lack of the required inten- 
tion or jurisdiction, does not prevent him from acting, 
validly although ordinarily illicitly, as a minister of 
the Catholic Church.° 


4 Council of Trent, Sess. VII, De Sacrs. in genere, can. 6, 8. Cfr. 
Tanquerey, Syn. Theo. Dogm., III, nos. 300-306, footnote p. 214. Pesch, 
Prae. Theo. Dogm., V1, nos. 312-313; nos. 109-130: “Obex invenitur in 
solis adultis et est defectus voluntatis, fidei, paenitentiae, non vero quae- 
libet ineptitudo recipiendi Sacramentum, sicut baptizatus non est aptus, 
ut iterum baptizetur. * * *” 

5 Cfr. Hurter, Theo. Dogm., III, no. 337, who states that it is de 
fide for Baptism (Council of Trent, Sess. VII, De Baptismo, can. 4), 
and fidei proximum for the other Sacraments, with the exception of 
Penance, on account of jurisdiction, which the Church supplies in the 
case of the dying. Pesch, Prae. Theo. Dogm., V1, nos, 241-245, ad- 
vances as the theological argument that the minister of the Sacrament 
is the instrument of Christ. A validly ordained priest, even though 
heretical or schismatical, can administer the Sacrament of Penance m 
articulo mortis; “Imo valet etiam de sacerdote haeretico vel schismatico, 
sed in solo casu necessitatis licet cum talibus communionem in sacris 
habere,” Ibid., VII, no. 425. St. Alphonsus, no. 560, 1, accepts the 
negative opinion as more probable even in articulo mortis, but changed 
his mind of this question later, Quaest. reform., 19 (VI, no. 560, footnote 


64 PENANCE 


The Church must strictly prohibit her ministers 
from licitly administering the Sacraments until the 
public bond is restored between the recipient and her 
external communion. This will be absolute for Sacra- 
ments of the external forum, which demand a public 
state of union with the visible membership of the 
Church. In the case of Sacraments of the internal 
forum with extreme spiritual necessity and physical 
impossibility of external union, this demand is not so 
absolute, as will appear in the further development of 
this discussion. As the defection is a public state, it 
follows that the reunion must be of the same nature, if 
morally possible. Hence, even in the extreme cases, 
where externalization is physically impossible, the 
Church permits her minister to act, only on the pre- 
sumption that this reconciliation has been effected in- 
ternally in the last moments of the dying person. 

This legislation of the Church is neither unduly se- 
vere nor unnatural. As the one and only true Church 
founded by Christ, she must demand that all ‘her 
members be in union with her. But one who has been 
in a public state of rebellion or disunion, even incul- 
pably, can do his share in the restoration of the public 
bond by rejecting his error and professing belief in 
the doctrine of the Church. Moreover, as a society, the 
Chureh has a right to demand this fulfillment of cer- 
tain conditions before she will readmit rebellious sub- 
jects. Thus, the children of one who has become the 
naturalized citizen of another country have no rights 
in the father’s original mother-country. If they wish 
to regain what he has abandoned, a new oath of alle- 
eiance and an elaborate process are demanded. Only 
after these have been gone through will the original 
6). Cfr. Vermeersch-Creusen, III, no. 468, 6; Tanquerey, Syn. Dogm. 


Theo., III, no. 399; Noldin, De Sacrs., III, no. 43 (however, only in so 
far as the ministrations in articulo mortis are concerned). 


PENANCE 69 


mother-country renew formal social national bonds 
with him. In a higher and more perfect manner, this 
is true of the Church. She is a divinely founded so- 
ciety, and as such must observe the laws given by her 
Founder. 

2. The Nature of the Obligation. 

The canon states a positive law, flowing from the 
divine command of her Founder.’ It imposes a very 
grave obligation on the minister and the recipient. In 
itself, however, it does not affect the validity of the 
Sacraments. This is dogmatically defined in the case 
of Baptism.’ Holy Orders administered by validly 
ordained schismatics and heretics, granting that the 
other conditions required for validity are present, are 
also valid. The Church clearly taught this against the 
Novatians and the Donatists.* The same is also true 
of the Sacraments of Confirmation and the Holy Enu- 
charist. Thus the Holy See has allowed only the con- 
ditional repetition of Confirmation .conferred by a 
schismatic, when it is probably invalid for some other 
reason.® There is no response of the Holy See which 
declared their ministrations of Penance to the dying 
invalid. Today, it is quite clear in the Code that all 
priests validly absolve all penitents, otherwise fulfill- 

6 Cfr. notes (2) and (3) to this chapter. Also Mauritio de la 
Taille, Mysterium Fidei (Parisiis, 1921), p. 387-388. 

7 Coun. Trid., Sess. VII, De Baptismo, can. 4. 

8 E.g., Pope Anastasius II (496-498), Denz., no. 169; Pope Gregory 
I (590-604), Denz., no. 249; Clement VIII (1592-1605), Denz., no. 1087; 
Code, c. 951. Cfr. c.1 (from the general council, Latern III), 2 (Inno- 
cent III), X, de schismaticis et ordinatis ab eis, V, 8. Anglican Orders 
were pronounced invalid because of defect of form and intention, Apos- 
tolicae curae, September 13, 1896. 

9 E.g., the response of the S. C. S. Off., July 5, 1853, Coll., no. 
1095, distinguished, and acquiesced in the Confirmations administered by 
these priests in places where the faculty was not expressly revoked in 
Valachia, Moldavia, and Asia. In a letter of the Holy Office, March 
16, 1872, repetition in cases in which Confirmation had been administered 
by schismatical priests was not judged expedient, unless Tonsure or 
Orders were to be received, or the parents requested it. Then it was 


to be conditional and secret. It would seem that a penicillium, used by 
some Orientals, played a prominent part in later decisions. 


66 7 PENANCE 


ing the other conditions required for validity, in dan- 
ger of death.° The phrase used by the present canon, 
Vetitum est, clearly does not pertain to validity. From 
viewpoint of the penitent, if he provides the conditions 
required for the valid reception of the Sacraments, 
there is no reason why he should not receive them 
validly. The Catholic doctrine is that the Sacraments 
give grace ex opere operato, non ponentibus obicem. 
Henee, if he is unaware of his obligations of renounc- 
ing error, which he does not recognize as error, and 
professing the full faith of Christ, of which he is un- 
aware, there is no reason why he should not receive the 
grace of the Sacrament. He will then be fulfilling 
this obligation materially and to the best of his ability. 
But the obligation is very grave on the part of the 
minister. He must warn even a ilying person, and 
secure the abjuration and profession, in so far as 
possible. 

(The nature of the abjuration and profession, which 
satisfies this canon in the case of the dying, will be 
discussed later in the chapter.) 

3. The Typical Cases. 

In a discussion of the intention required for the licit 
and valid administration of the Sacrament of Pen- 
ance to dying heretics and schismatics, three cases have 
to be carefully distinguished; first, those in which there 
is some kind of formal conversion on the deathbed; 
secondly, those in which there is some probable mani- 
festation of this intention, and the desire of receiving 
Penance; and, thirdly, those who gave and can give no 
sign. 


2. HisroricaL SurvEY OF THE RELATIONS OF THE 
CyuurcH To Dytne HERETICS AND SCHSMATICS. 


1. Introduction. 
The Church in her public relations with heretics and 


10 Canon 882. 


PENANCE 67 


schismaties must repudiate them. Some of them may 
be in invisible communion with her, but public law 
concerns the external and not the internal state. Un- 
der the extraordinary circumstances of approaching 
death, even public law concedes much modification in 
the fulfilment of its demands. The extreme case, how- 
ever, is not a matter for public law, but prudence and 
action in the spirit of the law. The Church is ever 
zealous in the avoidance of scandal to her subjects, 
and consequently is not likely to make a matter of 
public law what may cause laxity or harm. If it is true 
today that the Church leaves much to the prudence of 
her ministers, it is much more true of the earlier days 
of her history. 

There are early testimonies that cover the cases of 
some form of conversion in danger of death, and those 
in which signs have been given by the subject or others. 
It is quite certain that the Sacraments were refused 
to no dying person who sought them in any way, but 
nothing definite can be stated as to how this had to be 
done. In comparatively recent times, responses can be 
cited which permit action on the supposition that im- 
plicit reconciliation has taken place in the dying mo- 
ments. In the early ages, usually the ministers were 
validly ordained, even though heretics or schimatics, 
so that dying persons could well be left oftentimes to 
their ministrations. Today, very few of the heretical 
sects have validly ordained ministers, ‘unlike their 
sehismatical brethren, so that the problem has changed 
in nature. Another change is worthy of note in re- 
gard to the belief in the Sacrament of Penance. Most 
of the schismatics believe in it as Catholics do, and so 
ean be considered to have an intention of receiving it 
in their dying moments. This is not usually the case 
with Protestants, with the exception of High Church 
Anglicans. Hence, as long as they are conscious, in 


68 PENANCE 


addition to reconciliation, some specific instruction on 
Penance is required. But withal bigotry against the 
Catholic religion is fast on the decline, and a more 
open mind seems to prevail generally, of which the 
fast increasing number of converts is an evidence. 
But to return to the history, in the early ages, heretics — 
and schismatics had regularly validly ordained minis- 
ters, who could satisfy the needs of their dying 
brethren. Even today they have this power under the 
Code.” Hence, there was no special need for legisla- 
tion, except in cases in which some kind of conversion 
took place, or signs of reconciliation were manifested. 
In modern times, very few heretical ministers, as they 
are not validly ordained, can be the channel of this 
jurisdiction, even in the case of the dying.” 

2. The Apostolic and Post-Apostolic Fathers. 

The condemnation of heresy and schism are mani- 
fest in the Sacred Scriptures.1* The implicit divine 
prohibition of ministering to them sacramentally also 
finds place.*> But more precisely the texts concerning 
the ‘‘irremissible sin’’ or the so-called ‘‘unforgiveable 
sin’’ provided food and tissue for the rigorism of the 
first five centuries. 

The Apostles themselves recognized heresy as a 
very grave sin.© The Apostolic Fathers adopted the 
same view, but distinguished it from schism. Repen- 
tance is possible in the case of both sins, but is much 
easier in the case of schism.*’ The Post-Apostolic 

12 Canon 882. Cfr. cs. 2261, 2284. 

13 Anglican orders were declared invalid, due to lack of intention 
and form. Apostolicae curae, September 13, 1896. Cfr. Pesch, Prae. 
Theo. Dogm., VI, nos. 226-227: a validly ordained heretical or schis- 
matical bishop can confer valid Orders, Ibid., nos. 660, 664. 

14 Cfr. chapter I, no. 1. 

15 Cfr. notes to this chapter, (2) and (38). 

16°4 Gir, chapter [)no.1: 

? The Didache contains a general warning: “Ne derelinquas man- 


data Domini ; custodies vero quae acceptisti, neque addens neque de- 
mens” (IV, 13; R de J., no. 2). It also urges to create episcopi, and 


PENANCE 69 


Fathers drew a distinction between the fierce and the 
mild, the leaders and the simple.** Repentance is very 
difficult for the former, but again much easier for the 
latter. The difficulty of repentance, however, is based, 
not on the impossibility of the Church receiving them 
back, but on their own pride and bad will, and the 
nature of error, which prevent them from repenting. 
This sin of heresy is also recognized as having very 
bad effects on the community in general. Hence, in 
the restoration of the guilty, the personal perversion 
needed remedial regeneration, and the spiritual injury 
and scandal to the community at large called for some 
process that would deter others and purge out the can- 
cerous effects of this spiritual disease. In an attempt 
to prevent these evils, and those of other gross sins, 
the system of public penance naturally developed. In 
our humble opinion, it represents medicinal mercy 


warns: “Ne igitur contemnatis eos” (XV, 1-2; R. de J., no. 10). Pope 
Clement wrote his Epistle to the Corinthians precisely that the condi- 
tion of schisma might be brought to an end (J Cor. LVII, 1; R. de J., 
no. 27). St. Ignatius warns against those who: “. . . habentes per- 
versam doctrinam; quos non permisistis seminare inter vos” (Ad Eph. 
IX, 1; R. de J., no. 40), but “familiarum perturbatores regnum Dei non 
hereditabunt. . . . Talis, inquinatus factus, in ignem inexstinguibilem 
ibit; similiter et qui audit ipsum” (Ad Eph. XVI, 1, 2; R. de J., no. 41). 
Again, St. Ignatius warns against Judaizers and “ne incidatis in hamos 
inanis doctrinae . . .” (Ad Magn. IX, X, XI; R. de J., nos. 45-47). 
The dual test is “ut sine episcope nihil egistis . . .” (Ad Trall. I, 
2: R. de J., no. 48; III, 1; R. de J., no. 49-50; Phil. III, 2; R. de J., no. 
56): “Ne erretis, fratres mei: si quis schisma facientem sectatur, regni 
divini hereditatem non consequitur; si quis ambulat in aliena doctrina, 
cum passione non communicat” (III, 3; R. de J., no. 56). 

Cfr. Motry, The Concept of Mortal Sin in Early Christianity, p. 
18-19. St. Ignatius, Ad Phil. III, 2 (R. de J., no. 56), contains a gen- 
eral statement calling on all who are out of communion with the bishop 
to do penance: “. . . quotquot paenitentia ducti redierint ad unitatem 
ecclesiae. rik 

18 E.g., St. Irenaeus, 4dv. Haer. I, 10, 1 (MPG, 7, 552), Ibid., III, 
23, 3 (MPG, 7, 962). St. Justin, Dial. 35 (MPG, 6, 551), states: 
“et pro vobis (i. e., Jews) et pro aliis omnibus haminibus, qui nos 
oderunt (i. e., from context includes heretics), precamur, ut nobiscum 
respiscentes. . . .” Hermas, III, Simil., 8, 6 (MPG, 2, 975-978), 
calls on them to repent. St. Clement of Alexandria gives an elaborate 
description of the process of reconciliation of heretics, drawing an 
analogy between them and the different processes of grafting one limb 
of a tree on to another. 








70 PENANCE 


rather than mitigated rigorism. There is a silence in 
regard to the treatment of the dying which finds its 
best interpretation in the light of subsequent testimo- 
nies. Reconciliation under ordinary conditions en- 
tailed considerable inconveniences, so that, in an age 
when profession of Christianity meant bitter persecu- 
tion, any publishing of extreme leniency for the dying 
would have prevented many making their peace with 
the Church until then. In a later day, this actually 
happened in the case of Baptism, which was postponed 
until the moment of death by some. 

In an attempt to interpret the difficult passages of 
Sacred Scripture concerning the unforgiveable sin, a 
vigoristic heresy, Montanism, early made its appear- 
ance. It taught that the Church has not the power to 
forgive three sins, among them heresy. Thus, with 
them the difficulty of repentance on the part of the 
sinner is changed into an impossibility of remission by 
the Church. The difference is clear in the case of Ter- 
tullian. While orthodox, he holds out the hope of re- 
pentance to all sinners, but later joins the Montanists, 
and excludes the three classes.’° This heresy was com- 
batted by the orthodox from the very start, and tends 
to accentuate the merey of the orthodox teaching, to 
which Tertullian and his associates take violent ex- 
ception.” 

The question of the power of the Church over all sin 
was thus early asserted. In the meantime, the perse- 
eutions grew in ferocity and the Christian community 
in numbers. A new problem arose, especially in Car- 
thage. Considerable numbers of the Christians 
yielded to the persecutors, and became apostates either 
by sacrificing to the pagan gods or obtaining certifi- 


19 De paenitentia 4 (R. de J., no. 312), cfr. Ibid., 7, 8 (ANF, ITI, 
p. 657), orthodox. De pudicitia 5 (R. de J., no. 385), heterodox. 

20 Cfr. De pudicitia (Tertullian), 21 (R. de J., no. 387) ; Hippolytus, 
Phil IX, 12 (Kirch, nos. 228-233). 





PENANCE 71 


cates in testimony that they had done so. St. Cyprian, 
the Bishop of Carthage, in an attempt to check this, 
refused reconciliation to them for a time. Again, it is 
not a question of the power of the keys for him or his 
yarty, but of expediency and the due observance of all 
the formalities and public penances.” This is brought 
out clearly by the fact that in a case in which one of 
these apostates was over-hastily received by a bishop, 
he pronounces it valid, but reproves the bishop.” The 
orthodox position in the Lapsi controversy in refer- 
ence to the dying in particular is quite clear from the 
order of the Roman Church to St. Cyprian to reconcile 
all without delay or hesitation, at least when they are 
in danger of death. The question at stake is not as 
in the case of the Montanists, the power of the 
Church, or the sin of heresy as such, but the expedt- 
ency of public reconciliation, and a particular type of 
apostasy. It can be concluded with justice that any 
elemeney shown towards these apostates was even 
truer of heretics. In fact, in these early ages the con- 
stant complaint of the unorthodox, such as Tertullian 
and Hippolytus, is that the Roman Church, under the 
guidance of the Pope, is too lenient.** Wherever there 
is a question of rigorism, appeal is made to the Pope 
and the Roman Church, e.g., Firmillian and Novatus 
appealed to the Pope against the rigorism of St. Cyp- 
rian.® The testimony of Dionysius of Corinth shows 

91 Cfr. D’Ales, Dict. Apol., art. “Bapteme des heretiques,” I, p. 411- 


412, art. “Penitence,” nos. 49, 50, and p. 1777. Also chapter IV of this 
dissertation. 

22 Ep. 58 (ANF, V, p. 353-354). 

93 Cir. Ep. 2, 2, 3 (ANF, V, p. 280-281) ; Epis Ther CANE ENS p 
293); Ep. 13, 2 (ANF, V, p. 993-294); Ep. 14 (ANF, V, p. 294-295) ; 
Ep. 30, 8 (ANF, V, p. 311); Ep. 42 (ANF, V, p. 321); Ep. 51, 5, 6 
(ANF, V, p. 328-329) ; Ep. 52, 2 (ANF, V, p. 336); Ep. 53, 1-3 (ANF, 
V, p. 336-337). Also add the references in note (21) of this chapter. 

94 See notes (19) and (20) of this chapter. 

25 E.g., Hippolytus, Ref. Bk. IX, 2 (ANF, V, p. 125-126), Noetus 
went to Rome; Ibid, Bk. IX, 8 (ANF, V, p. 131), Alcibides came to 
Rome. St. Cyprian, Ep. 42 (ANF, V, p. 321), Novatus goes to Rome; 


2 PENANCE 


that this leniency was not peculiar to Rome.” The 
struggle between St. Cyprian and Rome also clearly 
demonstrates that no rigorism would be tolerated by 
the orthodox. 

In conclusion, it may be stated that there is no evi- 
dence to show that the orthodox Church, even in these 
early periods, exercised anything else than extreme 
charity and clemency towards dying non-Catholies, 
Its vigorous opposition to all rigorism is positive evi- 
dence of this assertion. 


3. Periods of the Councus. 

Montanism, and more particularly Novatianism, 
were essentially clerical. and sacramentalist move- 
ments. This rendered both of them all the more se- 
rious, particularly in view of the fact that they were 
regarded as schisms and not heresies by their contem- 
poraries. Moreover, they appealed to the Emperor 
Constantine, who was more interested in maintaining 
peace than strict orthodoxy. Hence, these early coun- 
cils, called at his request, represent attempts at estab- 
lishing compromises with the schismatics. The mem- 
bers sent the acts of these councils to the Pope for 
approval, which they did not receive. The council of 
Elvira (305) prescribes that heretics on returning te 
the Church are to be granted Penance, but not until 
after they have done public penance.’ In the council 
of Arles (314), held for the same purpose of compro- 
Ep. 54 (ANF, V, p. 338-347), is a letter to Pope Cornelius against 
Felicissimus and other heretics, who had appealed; Privatus went to 
Rome also; St. Cyprian states a general principle in refutation of much 
interest, “For, as it has been decreed by us—and is equally fair and just— 
that the case of every one should be heard there where the crime has 
been committed . . . ” (ANF; V, >. 334). 

26 Eusebius, Hist. Eccl. 4, 23, contains the following: “Dionysius 
receives back kindly all who have been converted from any falling away, 
whether of crime or heretical depravity.” 

27 For the calling of these councils by Constantine, cfr. Eusebius, 


Hist. Eccl., 10, 5, 18-20 (Kirch, nos. 355-356) ; Ibid., 10, 5, 21-24 (Kirch, 
nos. 357-358). Elvira, c. 22, Hef.-Lecq., I, 225. 


2 ————— 


PENANCE | ta 


mise, it was decided that those who apostatized from 
the Church and never either presented themselves for 
penance or sought it, but seek Communion in an in- 
firmity, ‘‘placuit iis non dandam communionem, nisi 
revaluerint et egerint dignos fructus poeniten- 
tiae. . . .’”® Neither of these councils deny absolu- 
tion to any dying person, although Arles refuses Com- 
munion. The power of the Church is unquestioned, 
but expediency causes them to put off full external 
reconciliation until the public penance was done. In 
this period it would seem that there were two forms 
of absolution, first, a culpa, and later a poena, on the 
completion of the public penance.” In the council of 
Aneyra (314), a modification is introduced, which can 
be explained on this basis, 1.e., apostates must com- 
plete the public penance on recovery,” and the bishop 
is given power to reduce or extend it.” 

The first ecumenical council of Nice I (325) took up 
and definitely settled the matter. The main difficulty 
in orthodox circles had been apostasy during persecu- 
{ions and not heresy, but the council states a general 
law. The.canon is very clear, and extends to all classes 
of dying persons: 


Regarding those who are passing from life, the 
lex antiqua regularisque shall by no means be de- 
prived of the last and greatly necessary viaticum 
(ephodiou). If, after he has been reconciled and 
has regained communion, he is again numbered 
among the living, let him have place with those 


28 c.22, Mansi, 2, 469. 

29 Pesch, Prag. Theo. Dogm., VII, nos. 30-31, and 41-42; but es- 
pecially nos. 222-227; no. 225: “ in vetere ecclesia tres modi 
confessionum distinguendi sunt; . . . Ab hoc iudicio utique pecca- 
tores condemnabantur ad paenitentiam publicam, sed ii tantum pecca- 
tores, qui aut per testes criminum convicti erant, aut ipsi libere con- 
fitebantur confessione non sacramentali, sed quae pertinebat ad forum 
ecclesiasticum.” 

30 c.6, Kirch, no. 377. Cfr. cs. 1-5, Kirch, nos. 375-377. 

31 c.5, Kirch, no. 376. 


74 | PENANCE 


who have the fellowship of the Prayer only (i.e., 
the highest class of public penitents). But, gen- 


erally, in the case of anyone whatsover who is: 


dying, and who asks to partake of the Eucharist, 
let the bishop give It to him after due investiga- 
tion.*? 


Historians of much weight interpret viaticum so as 
to include both Communion and absolution,* and even 
those who do not agree with this view admit that it at 
least signifies absolution. This viaticum is to be given 
to all when they are dying, and as the second sentence 
clearly shows, even before it is certain whether they 
have regained ecclesiastical communion or not, which 
is reserved until recovery. When one who had been in 
danger of death recovered, but not until then, if he had 
been reconciled, public penance was begun in a miti- 
gated form. There is a clear distinction between the 
conditions for the giving of the viaticum and the Holy 
Kucharist. The former, which certainly includes sac- 
ramental absolution from the guilt of sin at least, can 
be given to anyone who is dying, but the Holy Kuch- 
arist can only be administered when the subject has 
asked for It, and the bishop has decided that he should 
be permitted to receive It. Thus, in this canon there 
is a contrast between one who asked and received the 
permission of the bishop and ‘‘those who are passing 
from life.’’ Evidently, the latter give much less posi- 
tive grounds for reconciliation than the former. Both 
the council of Elvira and Arles had required some- 
thing that resembles signs of conversion. The ecu- 
menical council of Nice, untroubled by schismatics, 


: 32 c. 13, Hef.-Lecq., I, p. 417; Cir. Watkins, A History of Penance, 
Sie 


33 Cfr. Pesch, op.c., VII, no. 48, 51, who cites many authorities. 
Hef.-Lecq., I, 417-418, who. also cites many authorities, ancient and 


modern, in proof of the contention that the term includes both Holy 
Communion and absolution. 


a nies 


PENANCE (i) 
with these canons before them, expressly states that a 
petition is necessary in addition to the permission of 
the bishop for the reception of the Holy Eucharist by 
the dying man, but allows the viaticum to ‘‘those who 
are passing from life’’ without any further condition 
expressed. 

The content of this testimony, at least when re- 
stricted to sacramental absolution, is undisputed. 
Some, however, deny that it was a lex antiqua regu- 
larisque.* One thing is certain, the Church sought to 
root out all rigorism towards the dying from the very 
start. This canon of the council of Nice is in itself 
ancient enough to confirm the view that such clemency 
reigned officially from the beginning, when viewed in 
the light of evidences already adduced. Subsequent 
testimonies, which will be cited in the following section, 
expressly state that whereas Holy Communion was re- 
fused to some dying sinners during persecutions for 
reasons of expediency, Penance never was at any time. 
4. Final Settlement of the Question. 

In the fifth century, the denial of absolution is 
branded as Novatian and reprobated. Thus, Pope In- 
nocent I (405) writes that at no time was Penance ever 
denied to the dying, although Holy Communion was 
during times of fierce persecution, lest too great len- 
iency might do harm. After peace was restored, how- 
ever, Holy Communion was also given, lest the ortho- 
dox (‘‘we’’) seem to follow the bitterness and rigorism 
of the Novatians. Hence, this Pope orders that extre- 
ma communio be given with Penance to all dying per- 
sons who ask for it. But in some parts Penance, 
whether private or public is not certain, must have 
still been denied, as Pope Celestine I (422-432) con- 

34 Watkins, op. c. I, p. 291-292. Cfr. Pesch, Prae. Theo. Dogm., 


VII, nos. 222-227. 
35 Denz., no. 95. 


76 PENANCE 


demns this practice in very strong terms, and orders 
quovis tempore non est deneganda poemtentia postu- 
lant.*° 

It was required that the dying person ask for pen- 
ance, whether private or public is not certain, and that 
forms be observed in regard to public penance and 
reconciliation. In the council of Nice, the reconcilia- 
tion was left until the mind of the dying person could 
be determined, and so the first council of Orange (441) 
orders that reconciliation of the dying be according to 
the form of the Fathers with Holy Viaticum sine rec- 
onciliatiorts manus impositione.* Thus, there is a 
clear distinction drawn between the private and the 
public penance: ‘‘If, however, they recover, they must 
again take their place in the order of penitents, and 
only after the performance of the proper works of 
penitence, receive the regular communion (legitima 
commumo), together with reconciling laying on of 
hands.’ The same council also regulated that the 
testimony of others or the nod of the dying person can 
be taken as sufficient sign of the request for penance.* 
Pope Leo I (452) confirmed this practice of taking the 
testimony of bystanders and expressly included 
heretics.*° 

Thus, by the fifth century the attitude of the Church 
is quite clearly defined concerning dying baptized non- 
Catholics. The heretics thus far did not reject Pen- 
ance, so that there is no question of their consent to re- 
ceiving it, or of the necessary intention. At least two 
testimonies do not expressly demand the request for 
some form of Penance. In both cases, however, an 

36 Denz., no. 111. Cfr. Pesch, Prae. Theo. Dogm., VII, no. 57. 

37 c. 3 and 4, cfr. Hef.-T., III, p. 160-162, Holy Eucharist refused, 
says similar to c. 13, Nice I (325) and Carthage IV, c. 76, 78 (398?) ; 
Mansi, p. 44; cfr. Carthage IV, cs. 76, 77, 78, Hef. Lecq., I, 416. 

38 c. 3, Hef.-T., III, p. 160. 


39 c. 12, Hef.-T., III, p. 162. 
40 Denz., no. 147, Pope Leo I (440-461). 


PENANCE (iv! 


express request is mentioned in the same testimony as 
required for the administration of the Holy Eucharist. 
It would seem that the undertaking of public penance 
was voluntary, or at least some sign was required on 
the part of the dying person before it would be im- 
posed. The history is somewhat doubtful in nature, so 
that a certain conclusion cannot be drawn. The canon 
of Nice is reaffirmed by subsequent councils,** and 
becomes the guiding principle. In a council of Toledo 
(680) a strange variation appears; relations of the 
dying man would take the votum poenitentiae for the 
dying man, which bound him on recovery. The coun- 
cil abolishes this because many on recovery refused 
to do the penance on the plea that they were totally 
unaware of what was taking place.*? This practice 
reappears with approbation in the statutes of St. Boni- 
face.*®? These evidences would seem to lend additional 
support to our view, that the sign was absolutely re- 
quired for the public penance, as here a method is 
adopted of avoiding this difficulty in cases in which 
communication with the dying man is impossible. It is 
worthy of note that the difficulty is in regard to public 
and not private penance. 

5. Subsequent References to This Period. 

The canons of Nice I, Orange I, and the letters of 
Popes Innocent I and Celestine I are all found in the 
Decretum Gratiani.** In fact, they are the basis of all 

41 E.g., Barcelona (540), c.9; Nantes (658), c.4; Toledo (675), 
c. 12; Frankfort (794), c. 37; Statutes of St. Boniface, nos. 18, 31, 32. 

42 Toledo XII, c. 2, 8, Hef.-Lecq., III, p. 543-544 (the priest is 


excommunicated for a year who imposes public penance in the absence of 
clear signs). 

43 c. 32, Hef.-Lecq., III, p. 932; cfr. c. 18, Hef.-Lecq., III, p. 931, the 
last necessary Viaticum must not be refused to any person. 

44 c. 4 (a priest is to absolve and Communicate dying persons), 5 
(c. 4, Carthage II, if the bishop is absent, a penitent is to be reconciled 
by a priest in periculo mortis), 6 (an interpretation of c.12 (Nice I), 7 
(Orange 8, c.3, if dying persons are reconciled without manus imposi- 
tione, they are to be in the rank of public penitents, and receive such pub- 
lic reconciliation after the fulfillment of the public penance), 8 (Car- 


78 PENANCE 


subsequent legislation. Thus, the Council of Trent in 
its canon, which is incorporated in the Code in almost 
the same words,* in regard to the faculties of priests, 
limitless in extent and content, in cases of dying per- 
sons, states: ‘‘Verumtamen pie admodum, ne hac ipsa 
occasione aliquis pereat, in eadem Ecclesia Dei custo- 
ditum semper fuit, ut nulla sit reservatio in articulo 
mortis, atque ideo omnes sacerdotes quoslibet poeni- 
tentes a quibusvis peccatis et censuris absolvere pos- 
sunt. . . .’’*° Pope Benedict XIV, in his constitu- 
tion, Pia Mater, refers also to ‘‘the more ancient ex- 
amples of ecclesiastical benignity’’ in the case of the 
dying, and expressly cites the practice at the time of 
St. Cyprian.*7 The members of the synod of Pistoia 
wondered at the extreme leniency shown by the 
Fathers towards dying persons. Pope Pius VI (1794), 
in condemning this error, cites by name the canon of 
Nice I, and the letters of Popes Innocent I and Celes- 
tine I in refutation. But these testimonies were 
mainly concerned with those who had in some way 


thage IV, c. 76, dying persons can be publicly reconciled on the testimony 
of others, which is to be told them, and the public penance done on 
recovery), 9 (Nice I, c. 13, dying persons “necessario vitae suae non de- 
fraudetur viatico, but if they recover they are only to be received sola 
oratione communicant), 10 (Leo I), 12 (reus est animarum presbiter, qui 
penitenciam morientibus abnegat), 13 (Celestine I), 14 (Carthage III, 
c. 32, even one who commits a most public crime can be reconciled by a 
priest ultima necessitas), C. XXVI, 6. 

c. 1 (in danger of death the quantity of penance is not to be imposed, 
but made known), 12 (Melius est errare in misericordia remittendi quam 
in severitate ulciscendi, a principle taken from St. John Chrysostom), 
CORK VE Ce, 

45 Sess. XIV, De Sacr. Poen., cap. 7. 
46 Ex Constit., Pia Mater, Bened. XIV, April 3, 1747, Coll., no. 361: 
Apostolicae caritatis Nostrae vicera dilatantes, et tam veteribus 
quam recentioribus ecclesiasticae benignitatis exemplis inhaerentes; si- 
quidem extat illustre monumentum tertii Ecclesiae saeculi in epistola 
Sancti Cypriani, quae in novis editionibus impressa est num. XII, qua 
scilicet ineorum gratiam . . . etin mortis periculo versabantur 
quo minus, ut optaverat, ad eos reconsiliandos sese conferre posset. ’ 

47 Constit., Auctorem fidei, August 28, 1794, error 38; the exact 
words are: “ si contratian cata te Concilii NICAENI, decretali 
INNOCENTII I ad Exuperium Tolos., tum et decretali COELESTINI 
I ad episcopos Vienn. et Narbonen, provinciae, redolens pravitatem, quam 
in ea decretali sanctus Pontifex exhorret.” 


t¢ 


” 


PENANCE iemanelen ct, 


departed from the true faith and practice. 
6. Modern Times. 

The Reformation on the continent of Hurope at- 
tacked with special vigor the sacramental system of 
the Church. In England, at the commencement of 
this movement, the essentials of the Sacraments were 
preserved, but later, during the reigns of Edward VI 
and Elizabeth, vitiated intention and Ordinals ren- 
dered the orders of their ministers invalid. On the 
continent of Hurope, the Sacrament of Orders was at- 
tacked and eliminated by most of the Protestant sec- 
taries from the start. Hence, they can only administer 
the Sacrament of Baptism validly. Schismatics have 
retained their belief in the seven Sacraments and valid 
Orders, but the Sacrament of Penance involves an ex- 
ercise of jurisdiction also. There is no doubt, as 
already stated, that they administer Penance validly 
and licitly to their dying brethren. Difficulties arose 
in regard to heretics, due mainly to the lack of inten- 
tion of receiving the Sacrament, and to schismatics, 
where their own minister could not be had, or they 
desired to have a Catholic priest. In the case of both 
classes of non-Catholies, the form of reconciliation and 
signs required were the object of several questions. 

(a). Abjuration.—In the seventeenth century, ques- 
tions were asked and responses given by the Holy See 
concerning the abjuration required from apostates, 
where its external expression meant danger to life. 
The Holy Office, July 25, 1630, answered that in artic- 
ulo mortis, the confessor must absolve such a one, 
after making the abjuration in foro conscientiae.* 
Pope Benedict XIV, in his constitution, Pea Mater, 
April 5, 1747, also recognized as an ancient tradition 
that much less was required for the reconciliation of a 
dying person than one in good health.” 


Anes oO. July 25, 1630, Coll nossa: 
49 Coll., no. 361. 


SO PENANCE 


(b). Responses in which a sign of repentance, or a 
reconciliation mm a very general manner suffices.—In 
the nineteenth century, the Holy Office, May 9, 1821, 
calls attention to the fact that any wnfidelis, who gives 
signs of repentance, can be absolved in articulo mortis 
by any priest from any kind of sins whatsoever, and 
that nobody is to be then repelled from the Sacra- 
ments.©° On July 8, 1874, the Holy Office declared that 
Protestants, who were also Masons, can be absolved, 
after exhorting them: ‘‘in genere hortentur ut se sin- 
cere subiiciant ecclesiae auctoritati, atque mandatis S. 
Sedis,. . .’’? 1f more cannot be demanded without 
danger of turning their good faith into bad.” In an 
earlier response of the Holy Office, August 1, 1855, in 
the case of contumacious Masons, absolution from the 
censure was permitted, if any sign of repentance had 
been given, on the presumption, ‘‘etiam in articulo 
mortis, possunt per contritionem in Dei gratiam redire, 
ac wmternam cum membris mystici corporis Christi 
communicationem adipiscr,’’ without stating anything 
about the absolution from the sin. Also, in the same 
response, the Holy See refused to state a general rule 
regarding those who were members of. Masonic sects, 
and now in ignorance and good faith, but would hardly 
remain thus if warned (i.e., in good faith). It did not 
totally exclude the possibility of omitting the warning, 
but left it to the prudence of the confessor, who was 
to be guided by approved authors and Apostolic Con- 
stitutions.” 

(c). Responses in which there is, no mention of rec- 
onciliation.—On July 22, 1898, the Holy Office per- 
mitted the absolution of material schismaties in good 
faith and provided scandal was efficaciously removed.”* 
C. S. Off., May 9, 1821, Coll., no. 757. 

S. Off., July 8, 1874, Coll., no. 1419. 


S. Off., August 1, 1855, Coll., no. 1116. 
S. Off., July 20, 1898, ad 1, Coll., no. 2012. 


PENANCE 81 


No conditions regarding signs, nor reconciliation were 
attached to the response. It was not specified whether 
they were destitute of the senses or not. The response 
states that scandal must be efficaciously removed, so 
that full reconciliation is hardly considered. In addi- 
tion, the concession of the Sacrament is refused prae- 
terquam im articulo mortis, which would not be the 
case if full reconciliation were meant. The Holy 
Office, May 26, 1916, answered another question con- 
cerning schismatics, who are destitute of their senses, 
which has already been cited.** No sign of reconcilia- 
tion is mentioned or demanded. It is quite clear that 
none in the knowledge of the minister has been given: 
the Sacraments are to be administered conditionally, 
especially sz ex adjunctis conjicere liceat, eos wmplicite 
saltem errores suos rejicere, about which there would 
be no doubt if signs had been given; further, scandal 
is to be removed, manfestando scilicet adstantibus 
(qui id nesciant) Ecclesiam supponere eos in ultimo 
momento ad unitatem redusse, but more than suppo- 
sition would be had if signs had been given. Neither 
the question nor the response make any distinctions 
between those that had been in bad or good faith, but 
simply state that the Sacraments are to be given con- 
ditionally to such persons, which in our humble opin- 
ion represents the lesson of the Church’s history, and 
is in perfect accord with the common opinion. The 
element of formal contumaciousness non certe constat 
in the internal forum, which judges the conscience and 
not the state, when the dying man is destitute of his 
senses. In a word, the doubt is in favor of the peni- 
tent in the internal forum. Since the particle praeser- 
tim is used, even this implicit reconciliation is not ab- 
solutely required, and the administration is permitted 


54 Cfr. chapter II, im fine. 


89 PENANCE 


without any such evidence from the circumstances. 
The response takes for granted that the bystanders 
ought to know on what supposition—not moral cer- 
tainty or probability—the Church is acting. The 
phrase in ultamo momento is of importance, as it refers 
to the time when the person is destitute of his senses, 
and thus cannot give any sign. This response, then, 
represents a restatement in somewhat more detailed 
manner of those of 1821, 1855, 1874, 1898, and what is, 
in our humble opinion, the spirit of the first five centu- 
ries, as Should have already appeared, and will be fur- 
ther developed in the following chapters. 


THe Present Law. 


The Code states in a general manner in canon 901 
who is the subject of Penance: 


Qui post baptismum mortalia perpetravit, quae 
nondum per claves Heclesiae directe remissa sunt, 
debet omnia quorum post diligentem sui discus- 
sionem conscientiam habeat, confiteri et cireum- 
stantias in confessione explicare, quae speciem 
peccati mutent. 


As Baptism is a primary requisite to the reception 
of all other Sacraments, there is no possibility of val- 
idly receiving the Sacrament of Penance unless one 
has first been baptized. But theologians admit much 
mitigation of the other conditions in the face of ap- 
proaching death. In fact, the Code contains an ex- 
tremely clement canon, which governs the powers of 
the priest in the administration of the Sacrament to 
the dying: 


In periculo mortis omnes sacerdotes, licet ad 
confessiones non approbati, valide et licite absol- 
vunt quoslibet poenitentes a quibusvis peccatis 
aut censuris, quantumvis reservatis et notorus, 


PENANCE 83 


etiamsi praesens sit sacerdos approbatus, salvo 
praescripto can. 881, 2252.°° 


It is obvious from this canon that the Church gives 
‘full powers in connection with the Sacrament of Pen- 
ance to her ministers, in order that the dying person 
may be helped along the road to salvation in his dying 
moments. The limitations contained in the final clause 
do not concern the subject matter of this thesis. 

In a word, the present canon is an epitome of the 
past history. The Council of Trent had stated nulla 
sit reservatio in articulo mortis, which the present 
canon changes into in periculo mortis. But the his- 
torical antecedents of Trent lay in the early centuries, 
as is obvious from the condemnation of the proposi- 
tion of the Pistoian synod. These early centuries were 
summed up in the thirteenth canon of the first ecumen- 
ical council of Nice, which was the Church’s final an- 
swer to Montanism, and all the early rigorism which 
eentered around the theory of irremissible sins, of 
which heresy was one. On the other hand, however, 
Penance is a Sacrament, and so canon 731, par. 2, must 
be satisfied in so far as possible. But the danger of 
death will, as shall appear later, considerably modify 
these conditions. 


A. Caszes or Format DEATHBED CONVERSIONS. 


In cases in which the dying non-Catholic is willing to 
be converted, and there is plenty of time, naturally in- 
struction should be given as fully as the circumstances 
will permit. This will be followed by the usual proce- 
dure contained in the Roman Ritual.’ 

55 Canon 882. 

56 Cfr. Supplementum Ritualis Romani provinctis Americae Septen- 
trionalis Foederatae, p. 1-6. 

Past responses of the Holy See, however, clearly distinguish absolution 


from heresy in the external and internal forum. E.g., in the note to the 
Instruction S. C. de Prop. Fide, May 1, 1779, Coll., no. 533, the faculties 


84. PENANCE 


The canon regulating the avoidance of sacramental 
administrations to heretics and schismatics makes no 
exception for the dying.” It will therefore have to be 
fulfilled in so far as possible. The contrary custom 
of absolving dying heretics and schismatics, where in- 
struction can be given, merely on the grounds that they 
are in good faith, and the nature of the conditional use 
of the Sacraments has been reprobated by the Holy 
See in the past. The Mens of the same response is 
that as often as the dying heretic or schismatic has 
given some sign on which can be founded a reasonable 
doubt that he belongs to the Holy Catholic Church, 
priests will have to follow the norms laid down by ap- 
proved authors. Hven where danger of death is feared, 
in the case of an apostate, public rejection of error and 


granted by this Congregation for parts subject to it could not be used: 
aS: nec illos qui judicialiter abiuraverint, nisi isti nati sint ubi 
impune grassantur haereses, et post iudicialem abiurationem illus reversi, 
in haeresim fuerint relapsi, et hos in foro conscientiae tantum.” Much 
the same thing is repeated in a letter S. C. S. Off., May 7, 1882, Coll., 
no. 771, in which the faculty includes “haeresi externa occulta seu non 
deducta ad forum externum iudiciale.” Again, the earlier response of 
S. C. de Prop. F., April 8, 1786, is cited as the norm in S. C. S. Off., 
March 28, 1900, Coll., no. 2079: “Non est necesse ut qui a catholica fide 
defecerunt, ad eamque, postmodum reverti cupiunt, publicam abiurationem 
praemittant, sed satis est ut privatim coram paucis adiurent, dummodo 
tamen promissa servent, ac revera abstineant communicare cum hae- 
reticis in spiritualibus, aut quidquam facere quod haeresis protestatium 
sit. Idem senteniendum de iis qui haeresim, in qua usque ad _ initio 
educati fuere, privatim adiurent.” Etc. 

Hence, there is no difficulty under this head in danger of death. In the 
internal forum, canon 882 gives ample power, which will cover all cases. 
In this forum, the Church certainly does judge the occult, and the sins 
sicut in conscientia. In the external forum, however, the Church does 
not judge the occult, so that some sign will always be required, and the 
satisfaction of canon 731, no. 2, in so far as possible in an external man- 
ner. It is obvious that sometimes conflicts may arise between the 
Church’s action through her ministers in the two fora, in which case the 
internal forum qua tale is not entirely ruled by the principles of the 
external forum, but depends to a large extent on the subjective condi- 
tions of the dying person. What is done in the internal forum remains 
within it and will not in itself be recognized in the external forum. Ex- 
ternally, however, what is done in the external forum is generally bind- 
ing for the internal forum, unless contrary to the truth, which is known 
in the internal forum. 

57 Canon 731, no. 2. 

58 S.C. S. Off., January 13, 1864, Coll., no. 1246. 


PENANCE ailing, 8d 


recantation were demanded if possible, and if this was 
not possible, these had to be made at least in foro con- 
scientiae.*> When the person is destitute of the senses, 
a sign would obviously likewise be necessary for com- 
‘plete reconciliation. 


B. Casres In WuicH FormaAuL Conversion Is IMPossIBLE. 


Sometimes it is morally impossible to obtain any 
formal rejection of error, or complete reconciliation 
with the Catholic Church from the subject. The object 
of the minister should then be to secure as full a recon- 
ciliation as possible without destroying the good faith 
of the dying person. In the first place, prudence 
would suggest securing the conditions for the valid 
administration of the Sacraments. The Council of 
Trent teaches that attrition disposes one to ask for the 
Sacrament, and perfect contrition contains the votum. 
With these acts as basis, a general acceptance of the 
teaching of the Church should be forthcoming in some 
form. It would seem from the tenor of some of the 
responses of the Holy See in the past, as interpreted 
by theologians, points that are likely to turn the good 
faith of the dying man into bad can be avoided. Some 
also permit conditional absolution, if the presence of 
perfect contrition is morally certain, provided more 
cannot be obtained. One thing is certain, that, granted 
perfect contrition, they are within the invisible 
Church: ‘‘etiam in articulo mortis possunt per contri- 
tionem in Dei gratiam redire, ac internam cum membris 
mystici corporis Christi communicationem adipisci. 

8 But Penance, in so far as it is concerned with 
the absolution from the guilt of sin, pertains to the in- 
ternal forum, or mystical body of the Church. Some 

62 Cfr. S. C. S. Off., July 8, 1874, Coll., no. 1419; Reuter-Lehmkuhl- 


Umberg, Neo-Confessarius, no. 211. 
63 S.C. S. Off., August 1, 1855, Coll., no. 1116. 


86 | PENANCE 


distinctions, however, must be made. 

(a). If the dying man lapses into unconsciousness, 
and is im articulo mortis, with moral certainty in re- 
gard to these acts, conditional absolution can certainly 
be given in the internal forum. Even though the dying 
man was contumacious, and excommunicated as such, 
st clara dederint resipiscentiae signa, which is certain- 
ly the case if perfect contrition has been manifested, 
absolution ean also be given in the external forum. 

(b). If the dying man does not lapse into uncon- 
sciousness, a more express intention in regard to the 
Sacrament and reconciliation should be obtained. 
Prudence and the particular circumstances of the 
actual case can alone determine how this can best be 
done. If the dying man is a schismatic or a Protes- 
tant, who believes in the Sacrament of Penance, no 
difficulty need arise in this matter. Canon 731, par. 2, 
must also be satisfied in so far as possible. Many of 
the Fathers and Popes have cited the words of Our 
Lord: ‘‘Cast not your pearls before swine,’’® as the 
scriptural basis of the refusal of the Sacraments to 
heretics and schismatics. But in the hypothesis, the 
dying man is already in internal communication with 
the members of Christ’s mystical body, so that he is a 
friend of Christ, and falls in the class: ‘‘And other 
sheep I have, that are not of this fold: them also I 
must bring, and they shall hear my voice, and there 
shall be one fold and one shepherd.’’® 


C. Cases or THosk with Wuom Ir Is Imposste.E To 
COMMUNICATE. 


Under this heading, the physical impossibility must 
be interpreted in the sense already explained, relative 
64 S.C. S. Off., August 1, 1855, Coll., no. 1116. | 


65 Cfr. the present chapter, no. 1. 
66 John X, 16. 


PENANCE 87 


to Baptism.’ The hypothesis embraces only those 
who are in danger of death, with added condition that 
definite communication is physically impossible, due 
to some cause either on the part of the subject or the 
minister, e.g., destitution of the senses, lack of knowl- 
edge of the dying man’s language, ete. 

(a). If some sign of sorrow, e.g., a nod, sigh, or sob, 
is given by the dying man, that can be interpreted as 
satisfying in some manner canon 731, par. 2, he may 
be absolved at least conditionally in virtue of canon 
882. There is no reason for introducing distinctions, 
based on what the man had been in his past life. The 
fact is that he is probably repentant now, and the 
canon gives the minister full power over all sins and 
censures. If the man is attrite, it disposes him to ask 
for the Sacrament, if contrite, he actually has the 
implicit votum.® Hence, at least conditional absolu- 
tion can probably be given. Discussions as to whether 
these acts contain sufficient for the valid reception of 
the Sacrament will be reasons for the use of the con- 
ditional form, but not the refusal of absolution. The 
full facts are ex hypothesi unknown, so that the exact 
content or extent of such acts must remain a secret of 
Divine Providence, unless the sick man recovers. 

(b). If the subject is already destitute of his senses 
and cannot even give a sign, the testimony of the by- 
standers can be acted on, as in the preceding case. [* 
no sign whatever can or has been given, either by the 
subject himself or through others, a distinction must 
be introduced. 

(i). The dying man, until the destitution of his 

67 Cir. chapter III, sec. B, IT, 1. 

68 Council of Trent, Sess. XIV, cap. 4, De contritione, cfr. entire 
chapter, which states that the votum: “. . quod in illa contine- 
ct ‘Tid, 1. c., “Illam vero contritionem imperfectam, quae attritio 


dicitur, . . . tamen eum ad Dei gratiam in sacramento poenitentiae 
impetrandam disponit.” 


88 PENANCE 


senses, has not been a contumacious and formal heretic 
or schismatic; in which case he ean certainly be ab- 
solved conditionally, as has been already demon- 
strated, at least with extrinsic probability.” 

(ii). If he has been a contumacious and formal here- 
tic or schismatic, authors disagree in their conclusions. 
Some say that contumacy, from its very nature, ceases 
in such a case.” Is it certain when the man has passed 
beyond the realm of human communication that he 
continues to be contumacious in the forum of con- 
science? The Holy Office, August 1, 1885, granted that 
even contumacious Masons: ‘‘etiam in articulo mortis 
possunt per contritionem in Dei gratiam redire, ac in- 
ternam cum membris mystici corporis Christi com- 
municationem adipisci. . . .’”* But the same re- 
sponse introduced a distinction between the absolution 
in the external forum, permitting it only when clara 
signa had been given, and the internal forum. Noth- 
ing was said concerning absolution in the internal 
forum in such cases as are here considered. The gen- 
eral principle of moral theology is that the doubt is in 
favor of the penitent in the internal forum, and the 
occult is precisely the object of the judgment. In the 
external forum, the Church judges the manifest and 
not the occult. According to canon 882, the fact that 
the dying man was contumacious will not restrict the 
power of the priest. Hence, on the presumption that 
the dying man is at least attrite, and that the Church 
supposes that he was reconciled in ultimo momento, 
conditional absolution can be given.”* Many grave au- 
thors, however, disagree with this opinion, so that the 

70 Cfr., chapter II, sec. 3, B, 3. 

71 Vermeersch-Creusen, II, no. 226. Cfr. chapter II, sec. 3, B. 

72 Coll., no. 1116. 

73_Cfr. response of May 19, 1916, cited in full in chapter II, 1. c. 


Ita, Ferreres, Comp Theo. Mor., Ul, ed. XII; no. 608, 7, citing Card. 
Gennari, I] Monitore, vol. 6, p. 2, p. 113, et alii, contra plures alios. 


Qe a 


PENANCE 89 


matter will have to be left to the prudent judgment of 
the minister himself. The Holy See has not con- 
demned the milder opinion, but rather seems to im- 
plicitly include it in the response of 1916. Possibly 
this is also contained in St. Augustine,’* and St. 
Thomas.” 


D. Some OBJECTIONS. 


1. A Response of the Holy Office. 

The Holy Office, January 13, 1864, condemned the 
custom of giving absolution to all dying non-Catholics, 
merely on account of the nature of conditional absolu- 
tion, and the presumed good faith of the party, with- 
out any sign or previous act which might, even im- 
plicitly, contain a sign that the person wished to be 
reconciled with the Church. This silence was main- 
tained, either through impossibility or fear of disturb- 
ing the good faith of the party. The answer was: 
‘‘TJsum de quo quaeritur, prout exponitur, esse impro- 
bandum.’’** It is quite clear that there is no conflict 
between the views expressed in the present thesis and 
this response. The custom, only as stated in the ques- 
tion is condemned, which is not at all concerned with 
those destitute of their senses. Further, no attempt 
whatsoever is made to determine the mind of the dying 


74 De adult. conjug. cap. 28, 35: “Non ipsos enim ex hac vita arrha 
pacis exire velle debet mater Ecclesia.” The other quotation from St. 
Augustine, cap. 26, 33, cited in chapter III, 3, A, 5, applies to Baptism, 
but St. Alphonsus, Theo. Mor., V1, no. 482, and D’Annibale, Theo. Mor., 
III, no. 317, et alii, extended it to Penance. 

75 Cfr. Suppl., q. viii, a. 6, which gives a principle, although from the 
context used by the Saint possibly only in reference to jurisdiction: 
gx sed quia necessitas legem non habet, ideo quando necessitatis 
articulus imminet, per Ecclesiae ordinationem non impeditur, quin absol- 
vere possit. . . .” Again, possibly also from the context with the 
same restriction, Suppl., q.xx,a.1: “. . . nisi in necessitatis articulo, 
ubi nemini sacramenta deneganda.” And Comm. in IV Lib. Sent., D. VI, 
q.1,q.2: “. . . et ideo si forma servetur nec aliquid exterius dicitur, 
quod intentionem contrariam exprimat, baptizandus est. Non enim sine 
causa in sacramentis necessitatis, scilicet baptismo et quibusdam liis, 
actus baptizantis tam sollicite expressus est ad intentionis expressionem.” 

76 Coll., no. 1246. 


90) PENANCE 


person, or to secure a sign that might include even an 
implicit desire of reconciliation. The Mens makes it 
quite clear that it is only considering those who ean 
give some sign. The later responses of 1898 and 1916 
make this certain, and mention nothing concerning ap- 
proved authors. 

2. Scandal. 

It is obvious from the cautions concerning the avoid- 
ance of scandal in many responses of the Holy See 
that there is a real danger of scandal. Oftentimes 
this scandal may arise from a pharisaical attitude or 
narrow-mindedness in charity toward dying non-Cath- 
olics. The first type can be despised; the second will 
be lessened greatly by protestation on the priest’s 
part and instruction. But scandal must be avoided. 
Some of the responses of the Holy Office suggest a 
manner of doing this, e.g., on the absolution of dying 
Masons, July 8, 1874: ‘‘scandalum vero reparetur eo 
meliori modo quo fieri possit, etiam post obitum,’’” 
and the absolution of schismaties, who are destitute of 
their senses, ‘‘remoto seandalo, manifestando scilicet 
adstantibus (qui id nesciant) Eeclesiam supponere, 
eos in ultimo momento ad unitatem rediisse.’’* The 
obligation of removing scandal need offer no serious 
obstacle. It is one of charity, and can be removed, if 
possible, before the Sacraments are given. If, how- 
ever, there is not time to do this, as probably the sal- 
vation of a soul is at stake, the Sacraments can be ad- 
ministered, and the scandal repaired afterwards. 
Such scandal should be out of the question among well 
instructed Catholics, who have tasted of the creat 
merey of the Master. The angels of Heaven, most 
pure spirits, rejoice in the repentance of one sinner 


77 Coll., no. 1419, 


78 S.C. S. Off., May 19, 1916, cfr. chapter IT, sec. ND © I By Peg ih CS 
S. Off., July 20, 1898, Coll., no. 2012. 


ee 


PENANCE 91 


more than in the ninety-nine just. If there is danger 
of contempt of the Sacraments by the dying man’s co- 
religionists, this can be avoided by secret administra- 
tion, as far as the witnesses are concerned.” In the 
case of Penance in particular, if one destitute of the 
senses is given conditional absolution in the internal 
forum, it is hard to see that there would be an obliga- 
tion of making this known to the bystanders. Where 
Extreme Unction is administered, manifestation can- 
not be avoided. 

79 E.g., S. R. C., February 4, 1871, Coll. no. 1365. (Confession is 
today occult, so that there will be no difficulty in this case from the very 


nature of the Sacrament.) On the whole matter of scandal, cfr., the 
Instruction S. C. de Prop. F., January 30, 1807, Coll., no. 691. 


CHAPTER V. 
DYING NON-CATHOLICS AND THE SACRA- 
MENTS OF HOLY VIATICUM, EXTREME 
UNCTION, AND CONFIRMATION. 


It is naturally the desire of the priest who assists at 
the deathbed of a dying person to help him to the best 
of his ability. But each Sacrament was instituted by 
Christ for a definite purpose, and adds to the graces 
already existing in the soul. Holy Viaticum nurtures 
and strengthens the flame of spiritual life kindled in 
Baptism, after it has been dimmed by sin, and replen- 
ished in Penance; Extreme Unction+ completes Pen- 
ance and fortifies the dying person against the temp- 
tations of the devil; Confirmation marks him as a 
soldier of Christ. All three Sacraments, however, are 
aids to spiritual life already begun by the reception of 
Baptism. Hence, they cannot be received sacramen- 
tally until one has been validly baptized. The three 
Sacraments are likewise ‘‘Sacraments of the living,’’ 
iLe., they must be ordinarily administered to those only 
who are already in the state of grace. As the theolo- 
gians say, they do not primarily give ‘‘the first grace,”’ 
but only per accidens, when it is impossible to receive 
the Sacrament of Penance. But surely in the hour of 

1 These three Sacraments find a place in the same chapter, because 
the treatment of each one is somewhat similar. Entia non sunt multi- 
plicanda sine necessitate. Thus, needless repetition can be avoided. Many 
of the arguments used in this chapter represent merely a development 
of ideas touched on in earlier chapters. If the writer has perhaps been 
guilty of some repetition, this has been done for the sake of clarity and 
completeness of presentation. The argument in history from the second 


chapter to the end of the present one forms one whole, which tends to 
pe out the force of the preliminary consideration in chapter II, sec. 
ets 


92 


: 
! 
; 
: 





HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 93 


death, Penance will also have to be used, wherever this 
is possible. The order prescribed by the Roman Ritual 
is Penance, Holy Viaticum, and Extreme Unction.* 
Other circumstances, however, have to be taken into 
consideration, e.g., the attainmnet of the use of rea- 
son, the necessary knowledge, and intention, etc. As 
these are somewhat similar in the cases of Holy Viati- 
cum and Extreme Unction, the two Sacraments can 
well find treatment in the same chapter. Further, the 
historical evidence in the case of Extreme Unction is 
somewhat scant, possibly due to the fact that it is 1m- 
plicitly contained in that regarding dying persons and 
the Sacrament of Penance. More could be adduced 
for the Sacrament of Holy Viaticum, but again much 
depends on the interpretation of uncertain terminol- 
ogy. The question is less practical in regard to the 
Sacrament of Confirmation, as this is now regularly 
reserved to the Bishop. In the foreign missions, how- 
ever, the Holy See has granted and continues to grant 
special faculties to priests. Hence, occasion may 
arise to use them in cases of dying non-Catholies. 


1. HistoricaL SURVEY. 


1. Holy Viaticum in the First Five Centuries. 

It is very difficult to draw any definite conclusions 
from the testimonies of the early centuries concerning 
the administration of Holy Communion to the dying. 
Historians admit there is a comparative silence on the 
subject of secret confession, as distinguished from 
public confession, although they recognize that a dif- 
ference must be drawn between the conditions and 
formalities required for the one and not the other.’ 
The Council of Trent, however, distinctly teaches: 

3 Tit. V, cap. 1, De Sacr. Ext. Unct., no. 2 (Romae, 1913). 

4 Cfr. chapter IV. Pesch, Prae. Theo. Dogm., VII, nos. 263-269, 


who cites many authorities, and Tanquerey, Syn. Theo. Mor., I, Pars 
Dogmatica, nos. 61-67. 


94 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


« . 6.) 6unde cum a sanctissimis, et antiquissimis, 
patribus, magno, unanimique consensu, secreta con- 
fessio sacramentalis, gua ab imtio Ecclesia sancta est, 
et modo etiam utitur, fuerit semper commendata. . .’” 
The crux of the difficulty, in reference to the dying, is 
the conceded uncertainty of the meaning of the early 
terminology, and distinction between partial and com- 
plete reconciliation. 

It can be stated with certainty that the Blessed Eu- 
charist was regarded as a symbol of unity from the 
very earliest times.° As there is one body of Christ, 
the Church, all must be in this to receive the Body and 
Blood of Christ, thus, for example, in the Didache.’ 
St. Ignatius writes that those in schism do not commn- 
nicate in Holy Communion,* and St. Justin that it is 
not lawful for anyone to Communicate if he does not 
believe ‘‘what we teach.’”? This notion of the Blessed 
Kucharist is based directly on Sacred Scripture by St. 
John Chrysostom,*® and St. Augustine. 

St. Cyprian seems, however, to draw a distinction 
between public reconciliation and some other form, 
which is incomplete and does not permit the reception 
of the Holy Eucharist.’? Thus, he complains that pub- 
CRT ee XIV, cap. 5, de confessione. 

Cfr. chapter IV, note (2). 

1X0245°5,, Ride dionows: 

Phil. III, 2,3; IV; V; R. de J., nos. 56-57. 
Apol. I, 66, R. de J., no. 66. 

10 In Jo., hom. 146, 2 and 3, where Ephs., V, 30, is cited, MPG, 59, 
260: In Ep. I ad Cor., hom. 24, 2, MPG, 61, 200. 

11 Sermo 227 cites I Cor. X, 17, MPL, 38, 1099; In Jo XXVI, 13, 
MPL, 35, 1012. 

12 In Ep. XV,;'1 (CCSEL, 3) 9.514), CANE, Vi29.29i pe 
the main point of complaint is: “. . . offerre pro illis et eucharistiam 
(dare) id est sanctum Domini Corpus profanare audeant. . . .” In 
Ep. XVI, 2 (CSEL, 3, p. 518-519), (ANF, V, p. 290, Ep. IX, 2) St. 
Cyprian again objects: “| . . et per manus impositionem episcopi et 
cleri jus communicationis accipiant . . . ad communicationem admit- 
tuntur, et offertur nomine eorum, et nondum paenitentia acta, nondum 
exomologesi facta, nondum manu eis ab episcopo et clero imposita 


eucharistia illis datur, cum scriptum est, . . .” and quotes I Cor. XI, 
27. Ibid. 3: “. . . ante extitum persecutionis metum, ante reditum 


SOW 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 95 


lie penitents are admitted: ‘‘. . . while the peni- 
tence is not yet performed, confession is not yet made, 
the hands of the bishop and clergy are not yet laid 
upon them, the Eucharist is given to them.’’? Again, 
St. Cyprian states that he withholds public peace for 
disciplinary reasons, and also because the lapsed could 
cure it by means of voluntary martyrdom, if they 
wished.'* Those who had not obtained certificates 
from the martyrs must wait ‘‘for public peace,’’” 
which could be granted by a deacon in cases of neces- 
sity.° He also bitterly complained that the ministers 
of the Church had received the oblations before this 
complete and public reconciliation took place.’ At 
the outset the saint seems to have refused public rec- 
onciliation and consequently Holy Communion, even 
to the lapsed who repented and were in a dying condi- 
tion.® But the authorities of Rome ordered: ‘‘. 
if any who may have fallen into this temptation begin 
to be taken with sickness and repent of what they have 
done, and desire communion, it should be certainly 
granted them. . . .’’* St. Cyprian accepted this 
mandate, and later condemned the denial of reconcilia- 
Weim ante ipsum paene martyrium excessum communicent cum 
lapsis et offerant et eucharistiam tradunt. . . .” And Ep. XVII, 2 
eS age se2) cs)! |.) -.quo,magis in his gravissimis et extremis 
delictis caute omnia et moderate secundum disciplinam Domini ob- 
servari oportet.” Cfr. Ep. XV, 2, 3 (CSEL, 3, p. 514-515), (ANF, V, 
p. 291, Bp. %, 1); Ep. LVII, 2 (CSEL, 3, p. 651-652), (ANF, V,. p. 
337), where St. Cyprian orders the Blessed Eucharist to be given as a 
sign to those publicly reconciled outside of danger of death. 

13 Ep. X,1 (ANF, V, p. 291), (CSEL, 3, p. 517, Ep. XV, 1). 

14 Ep. XIII, 2 (ANF, V, p. 293-294), (CSEL, 3, p. 525-526, Ep. 
ALXOS): 

15 Ep. XIII, 2 cfr. note (14); Ep. XII, 1 (ANF, V, p. 293), (CSEL, 
V, p. 523-524, Ep. XVIII, 1). 

16 Ep. XII, 1 (ANF, V, p. 293), (CSEL, 3, p. 523-525, Ep. 
XVIII, 1). 

17 Cfr. note (12) to this chapter. 

18 Ep. Il, 2 (ANF, V, p. 280-281), (CSEL, 3, p. 486-487, Ep. 
VIII, 2). 

19’ Ep. II, 3 (ANF, V, p. 281), (CSEL, 3, p. 487-488, Ep. VIII, 3). 


Cfr. Ep. XIII, 2 (ANF, V, p. 293-294), (CSEL, 3, p. 525-526, Ep. XIX, 
2); Ep. XIV (ANF, V, p. 294-295), (CSEL, 3, p. 527-529, Ep. XX). 


96 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


tion to any dying person as that of Novatians, who 
were also themselves included in this merey: ‘‘ And yet 
to these persons themselves repentance is granted, and 
the hope of lamenting and atoning is left . . . no 
one is to be restrained from the fruit of satisfaction 
and the hope of peace, . . . since God exhorts ‘‘ both 
that sinners are brought back to repentance, and that 
pardon and mercy are not denied to penitents.’”*° Abso- 
lutely none are to be refused.** Even those that are 
fleeing from persecution, who ‘‘shall fall by chance 
among thieves, or shall die in fever and in weakness.”’ 
If such a one ‘‘dies without peace and communion 
.’ it will be before God . . .‘‘inactive negli- 

gence and cruel hardness. .. .’”* In conclusion, St. 
Cyprian carefully distinguished the obstinate from the 
less guilty,” recognized a state of secret or occult rec- 
onciliation, which his priests in Carthage improperly 
considered as sufficient for the reception of Holy Com- 
munion. The saint does not object to this secret recon- 
ciliation, but vigorously denies that it is sufficient for 
the restoration of public communion, which is an essen- 
tial requisite for the reception of Holy Communion, 
and begins after the public absolution by the bishop. 
At first, he does not seem to have permitted public rec- 
onciliation even to the dying without the proper for- 
malities, but later, through the interception of Rome, 
admitted all on the point of death. 

The councils of Elvira (3806), Arles (314), and Nice I 

20 Ep. LI, 26, 29 (ANF, V, p. 334), (CSEL, 3, 632-638, Ep. LV, 12, 
15,17, 19, 26, 29); Cir. Ep. LI, 12 \( ANF, V, p..330}; ands yee 
(ANF, V, p. 331-332). 

21 Ep. LI, 26, 29 (ANF, V, p. 334-335), (CSEL, 3, p. 644-647, Ep. 
LV, 26, 29). 

22 Ep. LIII, 3, 5 (ANF, V, p. 337-338), (CSEL, 3, 652-654, Ep. 
VE 306): 

23 Cfr. Ep. LIV, 1, 15 (ANF, V, p. 338-339, 344-345), (CSEL, 3, 
P._ 666-667, 684-685, Ep. LIX, 1, 15). Ep. LI, 29 (ANF, V, p. 335), 


(CSEL, 3, p. 647, Ep. LV). Ep. LII, 2 (ANF, V, p. 336), (CSEEag: 
p. 648-649, Ep. LVI). 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION Hi 


(325), will scarcely yield any more definite historical 
data. The council of Elvira stated that only a bishop 
could receive a public penitent into the Church, Le., 
probably formally and publicly, but in case of neces- 
sity, a priest or deacon could give such a one Com- 
munion as a sign of this reconciliation.** This is like- 
wise referred to as an ancient custom. Some have at- 
tempted to explain this canon by saying that it was 
never put into practice,” others on the ground that 
absolution was not given. However, if we distinguish 
secret absolution (a culpa) from public (a poena), 
there is no difficulty, and presume that some occult 
form of reconciliation has been given antecedently, 
or is given before the administration of Communion 
by the priest. The council of Arles orders that Com- 
munion is not to be given to apostates, even on their 
deathbeds, unless they recover, and do fruits’ worthy 
of penance.”* Nothing is said concerning secret abso- 
lution or reconciliation, and hence it is not excluded. 
The ecumenical council of Nice I (325), as has been 
stated in a previous chapter,” orders the Viaticum to 
be given to all dying persons. Some maintain that 
this word means absolution alone, others absolution 
and Communion. Whatever may be the truth in the 
matter, it certainly permits some concession that did 
not involve full public reconciliation, which the same 
canon orders is not to be given until some public pen- 
ance, although considerably modified, has been under- 
gone. The final sentence of the same canon also ex- 
pressly states that the Holy Eucharist is not to be ad- 

24 c. 32, Hef.-Lecq., I, p. 238. 

25 Cfr. Pesch, Prae. Theo. Dogm., VII, no. 48, who cites various 
authorities. Cfr. also Ibid., op. c., no. 263-269. 

26 c. 22, Mansi, 2, 469. 

97 The entire argument in the historical sections should now be 
drawn together. The simple statement is found in chapter II, sec. 3, B, 
preliminary consideration 1. It reappears in chapter IV, in which note 


(2) is of particular interest, and the entire second section. In the pres- 
ent section it is finally developed. 


98 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


ministered to dying persons, unless they ask for It, 
and the bishop decides that they should be given It.” 
Hence, it would seem that formal conversion was 
necessary for public reconciliation in the complete 
sense even for the dying and the reception of Holy 
Communion. This opinion is likewise in conformity 
with the testimonies of the Fathers, and the attitude 
of St. Cyprian, that the Blessed Eucharist is a special 
bond of public unity with the body of the Church. In 
the fifth century this becomes especially evident. 


A. Tue Hoty Viaticum. 


2. The Fifth Century to Modern Times. 

While the bishop was the ordinary minister of pub- 
lic reconciliation, it was recognized that an exception 
had to be made ror dying persons, even in the times of 
St. Cyprian. This becomes clearer in the ecumenical 
council of Nice I. In the second council of Carthage, 
it was regulated that a priest could reconcile a peni- 
tent (1.e., public) in case of necessity when the bishop 
was hindered.”® Pope Innocent I (405) wrote that at 
no time was penance ever refused to the dying, al- 
though Holy Communion was not conceded. Now he 
orders extrema communio to be given to all who ask 
for It.*° In France, the abuse of denying the Sacra- 
ment to those condemned to death existed from about 
this time as a civil penalty, according to some.” At 
all events, Pope Celestine I (422-432) condemned the 
refusal of penance (it is not certain whether this is 
private or public) to any dying person who asked for 

28 c. 13, Hef.-Lecq., I, p. 417. Cfr. Pesch, op. c., no. 51. The final 
words of the canon are: “Generaliter autem omni cuilibet in exitu 
posito et poscenti sibi communionis gratiam tribui, episcopus probabiliter 
ex oblatione dare debebit,” which seems to refer to a formal public 
Communion in connection with the public formal reconciliation. 

29 c. 4, Mansi, III, 691. 


30 Denz., no. 95. 
31 Cfr. Pesch, Prae. Theo. Dogm., VII, no. 57. 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 99 


it, but without any mention of Holy Communion.” 
Pope Felix (487) ordered that ordained clerics who 
had received rebaptism, regarded as an _ heretical 
practice, were to be excluded, and only in articulo mor- 
tis admitted to lay Communion; the lower clergy and 
laity were to undergo a long process of public pen- 
ance, but if they died earlier, the Viaticum (in our 
sense of the term) is not to be refused to them.* If, 
however, they recover, and have been admitted to Com- 
munion merely because of sickness, they must complete 
the penance in the highest degree of penitents, in ac- 
cordance with the canon of Nice I. These enactments 
were probably drawn up to meet the special crime of 
rebaptism and suppress the practice. This was re- 
garded as heretical, and the legislation in question 
may be taken as hardly any stricter than the general 
practice in regard to dying heretics. A council of 
Agde (506) orders that extrema communio (which is 
obviously used in our sense of the term Viaticum **) is 
not to be refused to anyone who is near death. 

B. Eatreme Unction.—The first clear testimony out- 
side of the Sacred Scriptures, concerning the adminis- 
tration of Extreme Unction is contained in a letter of 
Pope Innocent I (416), which gives the Roman prac- 
tice. The oil used is to be blessed by the bishop, but 
the Sacrament can be administered by any priest in 
eases of necessity. It must not be given to anyone to 
whom the other Sacraments have been refused: ‘‘Nam 
paenitentibus istud infundi non potest, quia genus est 
Sacramenti. Nam quibus reliqua sacramenta negan- 
tur, quomodo unum genus putatur posse concedi?’’* 

32 Denz., no. 111. 

33 Hef.-Lecq., II, p. 934-935. 

34 Agde (506); c. 63, D. I, Cfr. Innocent I, who uses the same 


term extrema communio in a passage in which there is no doubt as to 


the meaning, Denz., no. 95. 
35 Denz., no. 99. Cfr. Pesch, op. c., VII, no. 514, who rejects the 
interpretation of the passage so as to mean Confirmation instead of 


100 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


It is clear from these words that this Sacrament can 
only be given to the penitent after public reconcilia- 
tion, as a later testimony, under Pope Leo IV (850), 
explains: ‘‘Hoc tamen sciendum, quia, si is, qui in- 
firmatur, publicae poenitentiae mancipatus est, non 
potest huius mysterii consequi medicinam, nisi prius 
reconciliatione percepta communionem corporis et san- 
guinis Christi meruerit. Cui enim reliqua sacramenta 
interdicta sunt, hoc uno nulla ratione uti conceditur.’’*® 
This is in perfect harmony with the rule found in the 
Roman Ritual today, that the ordinary procedure is 
Penance, Holy Viaticum, and then Extreme Unction. 
If Holy Viaticum cannot be administered, then the 
order will be Penance and Extreme Unction. This 
follows from the fact that Extreme Unction is a Sacra- 
ment of the living. It is illogical to teach that condi- 
tional Extreme Unction should be administered without 
conditional absolution, if the latter is possible, and the 
subject is probably not in the state of grace. It is in- 
teresting to note also, that Extreme Unction pertains 
to the external forum, as the second testimony clearly 
demonstrates.*” Any other interpretation would lead to 
the absurd conclusion, that all the Sacraments in these 
times were refused to penitents and dying Catholics, 
although public penitents. 

The statutes of St. Boniface speak in the same gen- 
Extreme Uunction (fortasse). The latter interpretation does not seem 
probable, as the parties in question are adults, since they are undergoing 
public penance, which was only imposed on adults. If so, there is no 
reason for supposing that they had not already been confirmed. 

36 Denz., no. 315 (c. 8, Counc. Ticinense, 850) ; Mansi, 14, 932. 

37 ~Cfr. Tanquerey, Syn. Theo. Dogm., III, no. 779: “Extrema Uunc- 
tio remittit etiam poenam temporalem peccato debitam, non quidem totam, 
sed juxta gradum dispositionis in subjecto existente,” which is the com- 
mon teaching. But the remission of the poena as distinct from the culpa 
involved the external forum and at least the promise of public penance. 
Cfr. also Pope Leo I (440-461), in the letter Magna indign., Denz., no. 
145: “. . . Sufficit enim illa confessio, quae primum Deo offertur, 
tum etiam sacerdoti, qui quo delictis poenitentium precator accredit. 


Tunc enim demum plures ad poenitentiam, poterunt provocari, si populi 
auribus non publicetur conscientia confitentis.” 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 101 


eral terms of giving Penance, the Holy Viaticum, and 
annointing dying persons, without any special refer- 
ence to their past lives.** 

C. Conclusions.—F rom the time of Pope Innocent I, 
public reconciliation, Holy Viaticum, and Extreme 
Unction, seem to have been regulated by the same rule, 
and where one was given the others were also. As 
has already been stated,* definite signs, or at least a 
voluntary undertaking seems to have been required for 
the infliction of public penance, and consequent public 
reconciliation. As regards the internal forum, nothing 
can be stated with certainty, even in cases concerning 
persons who had been Catholics all their lives. In 
eases of destitution of the senses, the problem is like- 
wise the same. It is certain that the Church vigorously 
repudiated all attempts at rigorism. Possibly the dis- 
tinctions between absolution a culpa and a poena, and 
the external and internal forum, may permit piercing 
through this curtain of historical uncertainty. The 
conjectures are at least worthy of consideration, when 
one remembers that the problem cannot be restricted to 
dying non-Catholies alone, but all classes who do not 
give some signs, either through another or in their 
state of destitution. 

The main questions in regard to Extreme Unction, 
until comparatively recent times, centered around the 
institution and not the administration of this Sacra- 
ment, with which the present thesis is not concerned. 
St. Thomas’s practical teaching that the Sacraments 
must not be denied in articulo mortis, which has already 
been cited, is merely the conclusion of history, in the 

38 c. 18, 31 (clearly distinguishes between the cases of the normal 
and the dying, who are to be reconciled without delay and given the 
Holy Eucharist), 32 (a sick man can be given immediate reconciliation 
on the testimony of others, with the Holy Eucharist; if he recovers these 


witnesses must tell him what has been done), Hef.-Lecq., III, p. 931-932. 
39 Cfr. chapter IV. 


102 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


humble opinion of the writer. 
8. Modern tumes. 

It is not until the eighteenth century, that responses 
contain matter specifically concerned with dying non- 
Catholics and these Sacraments. 

The Holy Office, May 10, 1703, prescribed that the 
Viaticum should not be administered to a dying adult 
neophyte, unless he at least distinguished the spiritual 
food from the corporal, knowing and believing in the 
Real Presence. Kxtreme Unction could not be con- 
ferred on such a dying neophyte, unless he had at least 
some intention of receiving it in beneficium animae pro 
mortis tempore ordinatam.* This is cited in a re- 
sponse to a similar question by the Congregation of the 
Propaganda I"idei, September 26, 1821.7 Ina response 
of the Holy Office, May 9, 1821, concerning recidivi and 
consuetudinaru in general, the missionary is told to 
consult approved authors. <A caution is, however, 
added that any priest can absolve quemlibet fidelium, 
from any kind of censure or sin, if he gives signs of re- 
pentance in articulo mortis; ‘‘et neminem tunc repelli 
a participatione Sacramentorum, nempe Hxtremae 
Unctionis, si aegrotent, et SSmi Viatici, nisi quoad 
Viaticum obiciatur consuetudo, qua iis qui extremo 
supplicio mox punientur denegatur, de qua quidem con- 
suetudine nihil hic pronunciatur.’’*? The latter re- 
sponse concerns habitual formal sinners, but the word- 
ing is quite general. On April 10, 1861, the Holy Office 
warned in a response that the Sacraments of Confirma- 
tion and Extreme Unction are not to be administered to 
dying neophytes, unless they have a minimum of knowl- 
edge and proper intention. That this is not very much 
is clear, as the same response admonishes the mission- 

40 Coll., no. 256, ad 8. 


41 Coll., no. 768. 
42 Coll., no. 757. 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 103 


ary to instruct the sick person more diligently when he 
recovers in the mysteries of faith, and the nature and 
effects of the Sacraments.* 

The element of scandal also received attention. The 
practice of the missionaries of giving Extreme Unction 
to all the sick whom they believed in danger was com- 
mended. In cases, however, in which the Sacrament 
was administered in the presence of heretics, this was 
only tolerated, if it did not expose the Sacrament to 
their contempt.** In 1871, the Congregation of Rites 
gave permission for the occult administration (i. e., as 
regards outsiders) of the Holy Communion to the sick 
Wefereniin.)(..)\) ‘occulte)) aad -anfirmos or) 
without vestments or lights, if there was danger from 
heretics or schismatics. ‘The same concession was 
eranted for Extreme Unction.* In 1906, with the ap- 
probation of the Pope, the brief form of Extreme 
Unction was permitted in casu verae necessitatis.*® In 
the 1916 response, concerning schismatics, who are 
destitute of the senses, already cited several times, Hix- 
treme Unction was expressly mentioned and included. 
Hence, it ean be administered conditionally, under all 
such circumstances, after absolution.*’ 

Confirmation——This Sacrament has already been 
touched on in an earlier chapter in a somewhat differ- 
ent connection. Particular difficulties arose in the case 
of Confirmation administered by schismatics. Pope 
Benedict XIV ordered that it should not be adminis- 
tered in the Western Church, until such an age as the 
subjects would understand the difference between this 
Sacrament and Baptism, and that it made them soldiers 

soe SO .April 410, 1861, Coll.) no. 1213.) Cir). 5) CadeiProp. 
F., September 26, 1821, Coll., no. 768, which refers to the older response 
Shee Off., May 10, 1703, ‘ad 8, Coll., no. 256. 

uns, Gis, Off., December 1s ad 17 et 18, 1850, Coll., no. 1054. 

65) AD ee Ce. : February 4, 1871, Coll., no. 1365. 


4650 SG, 'S. Off, April 25, 1906, Coll., no. 2233. 
47 Cfr. chapter sap sec. 3, B. 


104 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


of Christ, but said nothing concerning cases of neces- 
sity.*® In 1854, the Congregation of the Council called 
attention to the fact that the subject did not have to 
be so old for Confirmation as for First Communion.” 

The contacts with schismatics also gave rise to the 
question as to whether Confirmation administered by 
their priests should be repeated. The general prin- 
ciple was laid down by the Holy Office, July 5, 1853, that 
it was not expedient to repeat Confirmation conferred 
by schismatics, even though the minister had been a 
priest, unless the faculty had been expressly with- 
drawn. On this basis, it was stated that this faculty 
had been withdrawn in Bulgaria, Cyprus, Italy, and 
the adjacent Islands, but not in Valachia, Moldavia, or 
Asia, where it had been acquiesed in.*? In subsequent 
responses for Constantinople and Jerusalem, it was 
declared that repetition was not expedient, except in 
cases of persons to be promoted to Tonsure or Sacred 
Orders, and then only secretly and conditionally.” 
Later, certain schismatics introduced a custom of using 
a pennicillum, and so the responses were given that 
Confirmation was not to be repeated, except as above, 
or at the request of the parents, and not unless after 
investigation it was discovered that this instrument 
was used. In such eases, it is to be repeated condition- 
ally and secretly.*? 

4, General Appreciation. 

The apparent lack of explicit testimony concerning 
the internal forum and occult reconciliation of dying 
persons ought not to cause much surprise. The disci- 
plina arcam might to some extent explain this. The 

48 Const., Eo quamvis tempore, May 4, 1745, Coll., no. 352. 

49 S.C. Coun., November 19, 1854, Coll., no. 1105. 

50 Coll., no. 1095. 

51 Litt. S. C. S. Off., March 16, 1872, Coll., no. 1381 (Jerusalem) ; 


S. C. S. Off., April 2, 1879, Coll., no. 1515 (Constantinople). 
52 S.C. S. Off., January 14, 1885, Coll., no. 1630 (Jerusalem). 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 105 


letters of St. Cyprian emphasize the need of maintain- 
ing rigorous discipline by an insistance on severe pub- 
lic penances, and excluding the hope of public recon- 
ciliation until these should be completed. As he says 
himself any hastiness or teaching of easier methods 
would work much harm. But, the saint does not at- 
tempt to regulate occult reconciliation, although he 
clearly supposes its possibility. Even in modern times, 
much of what takes place within this internal forum is 
left largely to moral theology, or rather to the prudence 
of the minister as guided by the principles of this 
science. Oftentimes, in such questions, the Holy See 
has refused to state a general law,*’ but rather directed 
the petitioner to consult approved authors.** The 
science of moral theology was in embryonic stage in 
these early centuries, so that such occult reconciliation 
pertained to the prudence of the individual minister. 
The silence is, however, not absolute.** 

It would seem that the Sacraments of Holy Viaticum 
and Extreme Unction pertained to the external forum, 
and so demanded public reconciliation before they could 
be received. This public reconciliation is quite distinct 
from absolution a culpa or secret confession, and could 
not be given to even the dying unless they either for- 
mally converted, or gave some sign, or witnesses were 
present. But it is possible for a deacon, in the absence 
of a bishop or priest to grant the dying man this public 

53 E.g., Instr. S. C. de Prop. F, April 17, 1777, ad X, Coll., no. 522, 
but with the principle in VI, Doctores opiniones ad Ecclesiae decreta 
sunt exigendae, non ipsa decreta ad opinantium libitum inflectenda. 5S. 
C. S. Off., August 1, 1855, Coll., no. 1116; S. C. S. Off., September 6, 
1899, Coll., no. 2068, final solution left to the prudence of the missionary. 
Cir. S. C. S. Off., September 18, 1850, Coll., no, 1050 S. C. Off., July 
6, 1898, ad. 2, Coll., no. 2007, consult approved authors. In another con- 
nection the opinions of Ballerini, Genicot, D’Annibale, and Bucceroni, 
could be followed with a safe conscience, S. Poen., January 9, 1899, Coll., 
no. 2031 Quoted specifically. Cursory glances at the various constitu- 
tions of Pope Benedict XIV show what an important role the opinions 


of authorities play. 
54 Cfr. Chapter IV, sec. 2, chapter V, sec. 2, 1, 2. 


106 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


reconciliation, which again proves that it cannot be 
confused with absolution a culpa.” Before the Council 
of Nice I, it seems likewise quite clear that this public 
reconciliation was sometimes granted, but the Holy 
Eucharist refused, for disciplinary reasons.**® In the 
Council of Nice I, three distinct stages are recognized ; 
first, the giving of the viaticum (the meaning of which 
is not clear) to all dying persons, without any reference 
as to whether they asked for it or not; secondly, after 
recovery the inception of public penanee, after the 
completion of which, complete reconciliation would 
take place; and thirdly, the giving of the Holy Eucha- 
rist only to those dying persons who asked for It, 
and by the judgment of the bishop. In the fifth cen- 
tury, it is quite certain, that public reconciliation and 
the Holy Eucharist were refused to no dying person 
who requested them, either expressly, if in control of 
his senses, or through signs given through the testi- 
mony of others, if destitute of his senses; but there 
had to be witnesses to the public reconciliation. In 
the seventh century, others were taking the votum 
poenitentiae tor the dying man without his knowledge, 
and when he was destitute of his senses. The difficulty 
seems to have been, that public penance could not be 
imposed apart from the will of the subject, or at least 
without witnesses who would inform the sick man of 
his obligations on recovery. The Sacraments of Holy 
Viaticum and Extreme Unction could not be given 
unless this publie act had taken place, because they 
were looked on as both pertaining to the external 
forum. The evidences show this clearly in so far as 
Kixtreme Unction is denied to an unreconciled public 
penitent. 


55 St. Cyprian, Ep. XVIII (ANF, V, p. 297). Cfr. Pesch, op. c., 
VII, no. 265, 415. 


56 Cfr. chapter IV, sec. 1, and the present chapter. 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 107 


5. General Application to the Code. 


A comparison of the general canons of the Code con- 
cerning Penance, the Blessed Eucharist, and Extreme 
Uncetion reflects these historical appreciations. 


Penance 
Canon 901. 


Oui post baptismus 
mortalia  perpetravit, 
quae 
claves Ecclesiae di- 
recte remissa sunt, de- 
bet omnia quorum post 
diligentem sui discuss- 
ionem conscientiam ha- 
beat, confiteri et cir- 
cumstantias in confes- 
sione explicare, quae 
speciem peccati mutent. 


Canon 870. 


In poenitentiae sac- 
ramento, per indicialem 
absolutionem a legiti- 
mo ministro impert- 
itam, fideli rite dispo- 
sito remittuntur pec- 
cata post baptismum 
commissa. 


Canon 882 


In periculo mortis 
omnes sacerdotes, licet 
ad confessiones non 
approbati, valide et li- 
cite absolvunt quoslibet 
poenitentes a quibusvis 
peccatis aut censuris, 
quantumvis reservatis 
et notorus, etiamsi 
praesens sit sacerdos 
approbatus. 


nondum _— per 


Holy Eucharist 
Canon 853 


Quilibet baptizatus 
qui ire non _prohib- 
etur, admitti potest et 
debet ad sacram com- 
munionem. 


Canon 885. 


1. Arcendi sunt ab 
Eucharistia publice in- 
dignt, quales sunt ex- 
communicatt, interdictt 
manifestoque infames, 
nisi de eorum poeniten- 
tia et emendatione con- 
stet et publico scan- 
dalo prius_ satisfece- 
rint. 


Extreme Unction 
Canon 943. 


Infirmis autem qui, 
cum suae mentis com- 
potes essent, illud salt- 
em implicite petierunt 
aut verisimiliter peti- 
issent, etiamsi deinde 
sensus vel usum ra- 
tionis amiserint, nihi- 
lominus absolute prae- 
beatur. 


Canon 942. 


Hoc  sacramentum 
non est conferendum 
illis qui wmpoenitentes 
in manifesto peccato 
mortali contumaciter 
perseverant; quod si 
hoc dubium  fuerit, 
conferatur sub condi- 
tione. 


The Blessed Eucharist, as is manifest from the his- 


tory and the canons of the Code, is especially a Sacra- 
ment of the external forum. Any baptized person who 
is not prohibited by the law can and must be admitted 
to Holy Communion. But all heretics and schismatics 
are juridically excluded by canon 731, par. 2, and re- 


108 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


garded in the external forum as under censure. Thus, 
in cases of formal conversion, the ordinary procedure 
involves conditional Baptism, if necessary, absolution 
from censure, and finally conditional absolution in the 
internal forum.’ They are to be repelled from the 
Holy Eucharist who are publicly unworthy, such are 
excommunicated, interdicted and those manifestly 
infames, unless it is clear concerning their penitence ’ 
and emendation and they shall have repaired public 
scandal in the first place. Now, the heretics and schis- 
matics in question were in the state of heresy or 
schism, so that the Church does not renew public rela- 
tionship with ‘them until there is some definite sign 
given. Hence, there can be no question of administer- 
ing the Blessed Eucharist, unless there is some form 
of external conversion, or some clear sign. This view 
is confirmed by an instruction of the Holy Office, Au- 
gust 1, 1855, concerning contumacious Masons. AI- 
though it was conceded that internal reconciliation to 
the mystical Body of Christ was possible, absolution 
from the censure and ecclesiastical burial were per- 
mitted only: ‘‘. . . si clara dederint resipiscentiae 
signa (quae passim a doctoribus enumerantur), pos- 
sunt etiam post mortem ab ecclesiastica censura ab- 
solvi. . . .’%8 No reference is made to the internal 
forum. Hence, it would seem that positive signs of 
reconciliation are necessary for the administration of 
the Holy Eucharist, even where belief in the Real 
Presence is certain. 

In the ease of the Holy Eucharist, a minimum of 
knowledge and belief is absolutely demanded, which 
ean hardly be postulated, except in the cases of schis- 
matics and some High Church Anglicans. In danger 


57 Cfr. S. C. S. Off., July 20, 1859, Coll., no. 1178; Supplementum 


Ritualis Romani pro provinciis Americae Septentrionalis Foederatae, 
p. 1-6. 
58 Coll., no. 1116. 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 109 


of death, it is enough for children: ‘‘ut sciant Corpus 
Christi a communi cibo discernere illudque reverenter 
adorare.’”® But with the two exceptions mentioned, 
even this minimum cannot be postulated for such dying 
persons. Hence, in their cases, some instruction would 
seem to be absolutely necessary, and something more 
than signs, which will suffice for the administration of 
the other Sacraments. The due reverence for the Sac- 
raments of Baptism, Confirmation, Penance, and [ix- 
treme Unction can be protected by the use of the con- 
ditional form, which is impossible in the case of the 
Holy Eucharist. 

The Sacrament of Extreme Unction is the comple- 
ment of the Sacrament of Penance. Ordinarily, the 
latter removes the guilt of mortal sin, and must be re- 
ceived before the former, which purifies the senses and 
eradicates the remains of sin. Extreme Unction only 
restores the soul accidentally to a state of grace when 
it has been lost and not revivified by Penance. From 
this viewpoint it is illogical, and contrary to the pre- 
scription of the Ritual, to teach that absolution should 
be denied, but Extreme Unction conceded. In cases in 
which there is some form of conversion, or signs have 
been given, there will be no difficulty. But suppose 
there are no signs, and none can be obtained, through 
the physical impossibility of communication? Theolo- 
gians commonly teach that at least conditional Ex- 
treme Unction can be administered, even in cases in 
which conditional absolution has been refused. The 
reasons adduced are: First, an habitual intention 
suffices for the validity of Extreme Unction; and, sec- 
ondly, no sensible sign is necessary, but attrition will 
suffice.” It seems strange that provided some inten- 

59 Canon 855, no. 1. 


60 Pesch, Prae. Theo. Dogm., VII, no. 86 (in fine). Vermeersch, 
Theo. Mor., Ill, no. 599. Cfr. chapter II, sec. 3. 


110 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


tion is postulated this should be restricted in the actual 
ease, which is for the most part unknown and a mys- 
tery of Divine Providence. If there is such an in- 
tention, why should it not grow under the influence 
of Divine grace to sufficiency for the administration of 
conditional absolution? The second reason applies 
equally to cases of dying Catholics. But there is no 
doubt that the custom has always prevailed of giving 
such at least conditional absolution as well as Hix- 
treme Unction. 

As a final conclusion, the following statements would 
seem to be warranted. There can be no question of 
administering the Holy Eucharist without the fulfill- 
ment of canon 731, par. 2, in some rather express man- 
ner. The history entirely agrees with this conclusion. 
But, with the disappearance of public penance, HWx- 
treme Unction seems to have been stressed as the com- 
plement of Penance, although quasi-external. 'Theolo- 
oians also consider the possibilities of the valid recep- 
tion of Extreme Unction as much greater than that of 
Penance. It is not until the response of 1916, however, 
that this Sacrament receives express mention by the 
Holy See in connection with dying heretics and schis- 
matics, and then it is placed on the same basis with 
conditional absolution for practical purposes. In the 
cases of neophytes, the Holy See permits the adminis- 
tration of Extreme Unction and Confirmation, but em- 
phasizes the need of some instruction, even for the 
dying, and a spiritual intention, but nothing is stated 
for eases in which this is impossible. Holy Viaticum, 
by its very nature, demands a knowledge and belief in 
the Real Presence. 


3.°Tue Present Law. 


(As much has been said already which logically falls 
under this seetion, the points will be briefly sum- 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 111 


marized). 
A. Tue Youna. 


In danger of death, it is enough that the recipients 
know how to distinguish the Body of Christ from com- 
mon food and reverently adore It, that the most holy 
Kucharist can and must be administered to children.” 
Extreme Unction can only be conferred on a fidelis, 
who is in danger of death on account of old age or 
sickness after the use of reason has been attained.” 

It is quite clear from the Code itself that a bare 
minimum of knowledge is demanded from the dying 
child for the reception of the Blessed Eucharist, which 
is much less than is required under other circum- 
stances.” Both the Sacrament of Penance and Ex- 
treme Unction demand either the possibility of com- 
mitting actual sin after the reception of Baptism, or 
for the latter at least the possibility of temptation. 
But one who has never attained the use of reason, in 
the sense already explained, is not capable of actual 
sin or temptation. Further, in his case, not even the 
secondary end of the Sacrament of Extreme Unction 
can be attained, namely, strengthening against the 
temptations of the devil. 

Although the administration of the Sacrament of 
Confirmation is suitably in the Latin Church deferred 
to about the seventh year of age, nevertheless it can 
only be conferred before this age, if the infant is in 
danger of death, or it seems expedient to the minister 
for grave and just causes.” Hence, this Sacrament 
ean be conferred on such dying infantes, if this is pos- 
sible. As the parents in question are non-Catholics, 

61 Canon 854, no. 2. 
62 Canon 940, no. 1. 
63 Canon 854, no. 2. 


64 Cfr. this chapter, sec. 1; chapter II, sec. 1; chapter III, sec. 2. 
65 Canon 788. 


112 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


however, this will hardly be feasible, in view of what 
has already been said concerning the prudence to be 
exercised, even in the case of Baptism. If the parents 
were willing to have the infant baptized in any case, 
and the minister has the necessary faculties, the in- 
fant should be confirmed. 


B. ADULTS. 


1. Holy Viaticum. 

In cases of formal conversion, there is not much dif- 
ficulty. Some instruction will, however, have to be 
given, that the dying person may know and believe in 
the Real Presence, and adore the Blessed Sacrament. 

When formal conversion is impossible, but a sign is 
given, some distinctions must be introduced. If the 
dying person was a member of a schism or sect that 
believed in the Real Presence, Holy Viaticum will ob- 
viously be administered. But in the case of others, the 
general attitude of Protestantism, which denies the 
Real Presence, must be taken into consideration. 
Hence, some instruction to supply the minimum of 
knowledge is necessary, which can be given if action is 
taken on a personal sign of the dying man. If the 
priest is acting on the testimony of others, he will 
have to find out from them whether the dying man has 
the necessary knowledge or not. This will be true also 
in Christian surroundings in cases in which the dying 
person is baptized for the first time, and has probably 
attained the use of reason. 

In case the subject is destitute of the senses, and 
no sign ean be obtained, it does not seem that the Holy 
Kucharist ean be administered. This will also be true 
where the dying person certainly believed in the Real 

66 Canon 854, no. 2. This rule was applied to dying adults, S. C. S. 


Off., May 10, 1703, ad 8, Coll., no. 256, and in greater detail, S. C. S. 
Off., April 10, 1861, ad 1, Coll., no. 1213. 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 116 


Presence. Contumacy may not be manifest under 
such circumstances, but this is not required that a 
person be excluded from the reception of Holy Com- 
munion. Even after the administration of condi- 
tional absolution, the dying man is publicly regarded 
in the external forum of the Church as excommunica- 
tus." The Church in her external forum does not 
judge of the occult or purely internal, and rules out 
all evidence taken from the internal forum. But they 
are to be repelled from the Holy Eucharist who are 
publicly unworthy, excommunicated, interdicted and 
those manifestly infames, unless it is clear concerning 
their penitence and emendation and they shall have 
repaired public scandal.* 


2. Hatreme Unction. 

Where conditional absolution has been granted, 
there will clearly be little difficulty concerning Ix- 
treme Unction. What has already been stated in re- 
gard to the Sacrament of Penance applies with greater 
force to this Sacrament. The only question is in re- 
eard to the knowledge required. 

(a). Cases in which it is possible to instruct the sub- 
ject—Much will depend on the circumstances, but if 
necessity urges, it will be sufficient to instruct the 
subject in a general way, if he has not sufficient infor- 
mation already, that the Sacrament is a spiritual rem- 
edy for the soul, and not a merely medical process or 
superstitious rite. 

(b). Cases in which instruction is impossible.—It 
the infirm person, when in possession of his senses, 





67 I.e., unless external reconciliation has taken place. In case the 
dying man is destitute of the senses, and no sign has been nor can be 
given, the Church does not judge the occult in the external forum, and 
so he is considered juridically as remaining externally in his previous 
condition. Cfr. Coll., no. 1116, concerning contumacious Masons, and 
S.C. S. Off., July 6, ad 3 et 4, Coll., no. 2007, which concerns a case in 
which conditional absolution is given to a dying non-Catholic, but the 
cautiones are demanded. 

68 Canon 855, no. 1. 


114 HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 


sought or seemingly sought Extreme Unction at least 
implicitly, even though he then lost his senses or the 
use of reason, nevertheless the Sacrament is to be ad- 
ministered absolutely.* If even this condition is not 
manifestly satisfied, the canon does not exclude the 
giving of conditional Extreme Unction. Theologians 
teach that it can be conferred conditionally, which is 
confirmed by the 1916 response.”° 

(c). Persons who were formal heretics.—Kixtreme 
Unetion is not to be conferred on, those who contuma- 
ciously persist impenitent in manifest mortal sin; but 
if there is doubt, it is to be conferred conditionally.” 
In case the dying man is destitute of his senses, and 
no sign has or can be given, there is no certainty re- 
garding the endurance of contumacy.” The difference 
between this canon and the analogous one on Holy 
Communion is important; here contumacy, which de- 
mands knowledge of subjective conditions,” is in ques- 
tion, but in the case of the Holy Eucharist, it was the 
public state, without reference to the subjective condi- 
tions.** Hence, there can be no difficulty concerning 
the conditional administration of Extreme Unction to 
such a dying person, under the circumstances.” But 
some theologians oppose this conclusion.” 

3. Confirmation. 

The Code contains only one canon on Confirmation, 
which expressly concerns imfantes, in danger of 

69 Canon 943. 

70 Vermeersch, Theo. Mor., III, no. 202; Pesch, Prae. Theo. Dogm., 
VITs*no:651.° ‘Cité chapter cL 17 see; A: 

71 Canon 942. 

72 Vermeersch-Creusen, II, no. 226; Genicot, Inst. Theo. Mor., Il, no. 
423; Blat, Comm. Test. C. J. C., Lib. III, Pars I, p. 339-340, seems to 
accept this view practically. 

73 Cfr. this chapter, sec. 1, 5. 

74 (Cfr. canon 855, no. 1: “. . . publice indigni 
Canon 043 sce, contumaciter. 7% 

75 Cfr. chapter II, sec. 3. 


76 Cfr. Pesch, op.c., VII, Noldin, Theo. Mor., Il, no. 444, c. (al- 
though in an extreme case). 


>? 


< SUED 


HOLY VIATICUM, EXTREME UNCTION, CONFIRMATION 115 


death.” Pope Benedict XIV regulated that this Sacra- 
ment should not be conferred until the subject had 
some knowledge of its nature. The Congregation of 
the Council pointed out that the subject did not have 
to be so old as for First Communion. In the Hastern 
Church, and in some particular regions of the West, 
Confirmation is administered to infants. The Code 
contains these modifications as a general law so that 
Confirmation can be conferred on a dying infans be- 
fore the age of seven. 

In the case of adults, past responses required some 
knowledge of the nature of the Sacrament, even in the 
case of the dying. But it is not required for the valid 
reception of the Sacrament, as the Code states that 
anyone be confirmed licitly and fruitfully, he must be 
in the state of grace and if he enjoys the use of reason, 
sufficiently instructed.” 

No obligation of administering the Sacrament under 
such circumstances is imposed: although this Sacra- 
ment is not necessary by necessity of means for salva- 
tion, it is lawful for no one, data occasione, to neglect 
it; finally, parochi should take care that the faithful 
approach it at an opportune time.” 

Hence, if the dying person is a baptized neophyte, 
or has been formally converted on his deathbed, it is 
seemingly unreasonable to refuse Confirmation, if it 
can be conferred and scandal avoided. Prudence will 
be the determining factor, if one has the necessary 
faculties. If there is danger of greater evils, is can 
be omitted. ; 

77 Canon 788. 


78 Canon 786. 
79 Canon 787. 


CHAPTER VI. 
DYING NON-CATHOLICS AND THE SACRA- 
MENT OF MATRIMONY. 


No difficulty will be present in cases where the 
dying man formally converts to the Catholic faith. 
He is then regarded as a Catholic, and no impediment 
exists from viewpoint of mixed religion or disparity 
of worship. Hence, in this chapter only cases of doubt- 
ful conversion or those in which the dying man is un- 
converted are considered. Throughout the discussion 
the dying party is always the non-Catholic, and the 
only impediment considered is that arising from the 
difference of religion of this party. 

1. Powers Granted to Ordinaries. 

‘‘In danger of death, Ordinaries may, for the relief 
of conscience and, if the case demands it, for the 
legitimation of children, grant dispensation, both from 
the form of marriage, and from each and all of the 
ecclesiastical impediments, whether public or occult, 


even if there are several, excepting the impediment of — 


priestly Orders and affinity in the direct life arising 
from consummatd marriage, to their subjects, wher- 
ever they may be, and to all persons actually in their 
territory, care being taken to avoid scandal, and if dis- 
pensation is granted from the impediment of disparity 
of cult or mixed religion, the usual guarantees being 
exacted.’ 
2. Powers Granted to Priests. 

‘‘Under the circumstances described in canon 1043, 
but only in those cases in which even the Ordinary of 


1 Canon 1043. Cfr. Ayrinhac, Marriage Legislation in the New 
Code of Canon Law, p. 86-87. 


116 


eee ES 


ry 


MATRIMONY 11% 


the place could not be reached, the same power of dis- 
pensing is enjoyed by the pastor and by the priest who 
assists at a marriage in accordance with the provision 
of can. 1098, par. 2, and by the confessor; but this last 
one in the internal forum only and in the act of sacra- 
mental confession.’” | 

3. Extraordinary Circumstances. 

‘<Tf it is impossible without grave inconvenience to 
send for or go to a pastor or Ordinary or a priest dele- 
gated by either of these to assist at a marriage in ac- 
cordance with the prescriptions of canons 1095, 1096: 

‘‘]. In case of danger of death, marriage will be con- 
tracted validly and licitly in presence of the witnesses 
only. | 

‘*9. In both cases if a priest could be present he 
should assist at the marriage, together with the wit- 
nesses, but the marriage would be valid in the presence 
of the witnesses alone.’” 

4. Analysis. 

As the dying person in the present thesis 1s a non- 
Catholic, and publicly known as such, it follows that 
the impediments in question will always be public. 
Hence, there is no need for a treatment of the power 
of the confessor in such cases. 

(a). The nature of the power granted.—Before the 
Code the power of the Ordinary in these cases was 
delegated. In 1888, with the original faculty, the 
Ordinary was given the power of subdelegating one 
person,‘ which was extended in 1889 so that the Ordi- 
nary could habitually subdelegate also all parochi, but 
only parochi.2 In a response on the Ne Temere, the 
priest in exceptional extraordinary cases was granted 

2 Canon 1044. Cfr. Ayrinhac, op.c., p. 88-89. 

; Canon 1098. Cfr. Ayrinhac, op.c., p. 246. 
5 


litt ‘encycl.,.S. C..S. Off; February 20, 1888, Coll., no. 1685. 
Sag Oe Off., April 23, 1890, Coll., no. 1728. 


118 MATRIMONY 


the same power as the Ordinary, but thus delegated 
ajure.” By afurther response of 1910, it was declared 
that this also included all parochi, so that they be- 
came delegated a jure also.” The Ordinary was lim- 
ited to cases in which there was not time to recur to 
the Holy See, the parochus to those in which there was 
not time to recur to the Ordinary, and the priest acting 
in extraordinary circumstances, from the very nature 
of his position, to cases where neither the Ordinary 
nor the parochus nor the delegate of either could be 
present. 

In the Code the power of the Ordinary, conceded by 
canon 1048, is certainly ordinary, as it is a jure and at- 
tached to an office.’ There is no restrictive clause, as 
in the old faculties, so that it can be exercised, regard- 
less of whether there is time to recur to the Holy See 
or not. The power of the parochus is certainly ordi- 
nary for the internal forum, and according to some 
probably also ordinary for the external forum.’ In 
the law in vogue before the Code, the supporters of the 
opposite view maintain that the parochus had no juris- 
diction in the external forum. But, they say, the Code 
is altogether silent on the matter, so that the old law 
must be followed, according to canon 6, par. 4.7 
The question, however, is purely speculative, and the 
fact remains that the parochus can dispense from all 
contained in canon 1048, under precisely the same con- 
ditions and limitations provided therein, and habitual- 
ly delegate others to do the same. The parochus is 
limited by the Code to cases ‘‘in quibus ne loci quidem 
Ordinarius adiri possit,’’ without the added condition 
of the old faculty, ‘‘et periculum sit in mora.’’ The 

6 Ne Temere VII; May 14, 1909, AAS, I, p. 468. 

7 July 29,1910, AAS, II, p. 656. 

8 Cfr. canons 145, no. 1, and 197, no. 2. 

9 Vermeersch-Creusen, II, no. 353; Cappello, De Sacramentis, III, 


no. 236. Contra, Viaming, Prae. J. Mat., II, no. 415. 
10 Vlaming, 1. c. 


MATRIMONY rea fe 62 


power of the priest present under extraordinary cir- 
cumstances is delegated a jure for both fora, as he 
has not an office in the strict sense. He is limited to 
cases in which it is impossible without grave incon- 
venience to send for or go to a pastor or Ordinary or 
a priest delegated by either of these to assist at a 
marriage in accordance with the prescriptions of 
canons 1095, 1096. It is understood that the Ordinary 
and pastor in question are those who a jure validly 
assist at all marriages within their territory, i.e., the 
pastor of the place in which the party is dying. If the 
non-Catholic party is baptized, the marriage could be 
contracted validly, even without the cautiones, al- 
though illicitly, in the presence of two witnesses, and 
even though the priest in question be present. This 
conclusion flows logically from the fact that mixed re- 
ligion, as distinguished from disparity of worship, is 
not a diriment impediment, and canon 1098, par. 2, 
expressly states ‘‘a marriage would be valid in the 
presence of two witnesses alone.’? The presence of 
the priest is necessary to grant the dispensation, but 
not for the validity of the marriage, not otherwise in- 
validated by some diriment impediment. 

(b). The persons over whom the power can be ex- 
ercised.—It is clear that this faculty can be exercised 
over subjects in one’s own territory.” This was 
exceptional wherever the Tametst bound, as it re- 
quired the Ordinarius proprius or the parochus 
proprius. The Ne Temere changed the law regard- 
ing the parochus proprius, making it possible for 
a parochus to marry validly all, not otherwise sub- 
ject to a diriment impediment, within his own terri- 
tory, whether they were his subjects or not. The Ne 
Temere required three conditions that a marriage be 


11 Vermeersch-Creusen, II, no. 353, 2. 
12 Motry, Diocesan Faculties, p. 132-133, Washington, 1922. 


120 MATRIMONY 


celebrated without the competent priest: first, immi- 
nent periculum mortis; secondly, that the marriage be 
necessary ‘‘ad consulendum conscientiae et (si casus 
ferat) legitimationi prolis’’; and, thirdly, that some 
priest be present.** The Code has modified the gen- 
eral canon 1098, so that periculum not articulus mortis 
suffices, no necessitas conscientiae is necessary, and the 
presence of the priest is not required per se for valid- 
ity. Canons 1043 and 1044, however, contain the first 
two conditions, and if a diriment impediment be pres- 
ent the presence of the priest will be necessary to 
grant the dispensation. The Code follows the Ne Te- 
mere, but adds to this by allowing the Ordinary or 
parochus to exercise this faculty anywhere over his 
own subjects. The power of the priest acting accord- 
ing to canon 1098, par. 2, is obviously exercised over 
parties that are not his subjects. 

(c). The extent of the faculty—The original faculty 
did not include prohibitive or expressly occult impedi- 
ments. A question was asked on April 23, 1890, as to 
whether the Ordinaries could habitually delegate the 
power of dispensing in such cases from occult impedi- 
ments which they had in cases of most urgent neces- 
sity, according to the common opinion of theologians. 
The response was: ‘‘Ex vi decreti, affirmative pro 
mortis articulo.’** The Ne Temere used general 
terms, but not until 1916 was it certain that the eccle- 
siastical form could be dispensed from, permitting the 
absence of the priest, but requiring the presence of 
two witnesses to the act itself of renewing the con- 
sent.” The Code is most generous and extends ex- 
pressly the faculty so as to include the form, and all 

13 Vermeersch-Creusen, II, no. 404. 

14 S.C. S. Off., April 23, 1890, Coll., no. 1728. 


15 S.C. S. Off., December 13, 1899, Coll., no. 2072; S. C..S. Off, 
August 2, 1916, AAS, VIII, p. 316. 


MATRIMONY 121 


ecclesiastical impediments, with the usual two excep- 
tions, public or occult, diriment or prohibitive, single 
or multiple. The pastor enjoys the same faculty, and 
also the priest assisting at the marriage under extra- 
ordinary circumstances. Canon 1043 grants to Ordi- 
naries the power of dispensing from the canonical 
form and certain impediments. Canon 1044 grants to 
parocht and the priest in the extraordinary case eadem 
dispensandt facultate, but canon 1043 stated: ‘‘. 


Ordinarii . . . possunttumsuperforma ... tum 
super omnibus et singulis impedimentis . .. dis- 
pensare. . . .’’? In any case im virtue of canon 1098, 


par. 2, although the priest’s presence would be neces- 
sary for the granting of the dispensation from the im- 
pediment, it is not for the validity of the marriage, 
salva conjugu validitate coram solis testibus. This 
opinion is confirmed by the previous decision of 1919, 
which affords an example of a justifying cause."* The 
same reason may exist for granting the dispensation 
from the form in the case of the pastor as the Ordinary, 
e.g., difficulties from the civil law in emergency cases, 
where the parties are married before securing the 
necessary marriage license. Moreover, the powers 
conceded in canons 1043 and 1044 are subject to broad 
interpretation.” 

(d). Requirements on the part of the subject—In 
the original grant the parties had to be either pre- 
viously civilly married or living in concubinage. The 
Ne Temere did not contain these restrictions, and used 
words similar to the Code, which place absolutely no 
such restrictions as to whether the marriage is to be 
contracted, or was contracted invalidly in the past, or 

16 S. C. de Sacrs., May 14, 1919, AAS, VIII, p. 36: in periculo 
mortis . . . “quilibet sacerdos dispensare valet etiam ab impedi- 
mento clandestinitatis, permittendo ut in relatis adjunctis matrimonium 


cum solis testibus valide et licite contrahatur.” 
17 Cfr. canons 199, no. 1, 200, no. 1, 202. 


122 7 MATRIMONY 


was merely concubinage without even the appearance 
of marriage, ete. 

The Code gives two conditions under which the fac- 
ulty can be used, as all canonists agree that the et is 
disjunctive, which the clause si casus ferat placed be- 
fore the second alternative renders certain. It was 
already clear before the Code that the faculty could be 
used where the impediment mainly affected the party 
in good health.** Hence, there must be one of two con- 
ditions present, either the relief of conscience, or the 
legitimation of the offspring, in cases such as this 
thesis considers.'*? 

(e). Removal of scandal.—The most effective means 
of removing scandal, with certain exceptions, is the 
making known of the marriage. This may not be pos- 
sible, either because it involves great danger, or gives 
rise to a greater scandal. Thus, if a marriage license 
has not been obtained, heavy civil penalties may be 
incurred. If it is possible to obtain such, and the 
marriage takes place after it is obtained, ordinarily 
publication of the marriage will remove scandal. But 
if the license has not been obtained, its publication 
would be rash. In cases in which ordained clerics, of 
the rank of subdeacon or deacon, or persons with sol- 
emn vows, the Holy See in the past has recommended 
secrecy in the matter of the marriage, and removal 
to other parts where the facts are unknown, as the 

185. C. S.s08f., July1) 1891) Coll ino: 17587), Cir sen ene 
July 6, 1898, ad 3 et 4, Coll., no. 2007, which declared that the faculty 
could be used in the case of an infidel civilly married to a Catholic, who 
is suit compos and dying, provided the matrimonial consent was renewed 
and the cautiones given If there was a possible hope of the future 
Catholic instruction of the children, they were to be baptized; if not, 
only in case they were.in articulo mortis. In such a case, the cautiones 
are to be demanded from the Catholic party, if he is still sui compos. 

18b Vlaming no. 401, p. 24; Genicot, II, no. 522: “In Codice legitur 
et, si cut in decr. Ne temere ubi de facultate assistendi matromonio in 


extremis. Sed consentiebant commentatores alterutram causam sufficere.” 
Vermeersch-Creusen, II, no. 348; Cappello, III, no. 232, d. 


—————— oe 


MATRIMONY Wap eis 


method of avoiding scandal.’ 

({). The Cautiones—The Holy See in the past de- 
manded that the cautiones should be sought, even in 
articulo mortis.° Before the Code, the general fac- 
ulty was in all cases delegated, and did not cover mixed 
marriage, as distinguished from disparity of worship. 
In certain regions, e.g., parts of Germany, Hungary, 
Austria, and Chile, the passive assistance of the priest 
was tolerated at marriages, which remained illicit, 
due to the absence of the cautiones, because of the civil 
law. Thus, by a Letter of the Cardinal Secretary of 
State, March 27, 1830, faculties were granted by which 
the bishops could not dispense, but ‘‘ideireco tantum eo 
in casu relaxari ne graviora scandala eveniant,’’ and 
with the exclusion of all ecclesiastical rite of any 
kind.” This was repeated by an Apostolic Letter of 
Gregory XVI, April 30, 1841.7 In an Instruction of 
the Propaganda Fidei, 1858, addressed to the Greco- 
Rumenian bishops, a similar toleration was granted.? 
In the last two cases the expression quamvis allicita, 
provalidis habenda is used. In a response of the 
Holy Office, July 6, 1898, concerning a case in which 
the Catholic party had been civilly married, and had 
children by a Jew, in which it would seem that the 
cautiones could not be secured from the non-Catholic 
party: ‘‘A moribundo catholico vero, si iam est com- 
pos sui, cautiones exquirantur ut praedicta valeant 
obtineri.’”* The Holy Office, April 12, 1899, declared 
that in eases in which the cautiones could not be se- 
cured, the Pope should be asked for a sanatio m radice 

19 Litt. encycl. S. C. S. Off., February 20, 1888, Coll., no. 1685, 
Mens. Cfr. De Smet, Betrothment and Marriage, I, no. 135. 

20 S.C. S. Off., March 18, 1891, Coll., no. 1750. 

20b Footnote added to Litt. Ap. Pii PP. VIII, March 25, 1830, Coll., 
no. 811 (Coll., vol. I, p. 476). 

21 Litt. Ap. Gregorii PP. XVI, April 30, 1841, Coll., no. 920. 


22 Instr. S. C. de Prop. F., 1858, Coll., no. 1154 (versus finem). 
23 S.C. S. Off., July 6, 1898, Coll., no. 2007. 


14a Pe MATRIMONY 


with the perseverance of consent.* On June 21, 1912, 
a general decree was issued which stated: ‘‘In con- 
cedendis ab habente S. Sede potestatem dispensationt- 
bus super impedimento disparitatis cultus praescrip- 
tae cautiones semper sunt exigendae et si vero his cau- 
tionibus non requisitis vel denegatis dispensatio detur, 
pro nulla habenda est, et matrimonium ex hoe capite 
esse nullum per se ipsum Ordinarius declarare potest, 
quin singulis vicibus ad S. Sedem pro defintiwva sen- 
tentia recurrat.’’® Whatever about the decision of 
1912, it can be stated that previous to 1912 there was a 
real dubium legis, so that documents previous to that 
date will not establish certainty with regard to the 
Code. 

Canons 1043 and 1044 grant powers which are ordi- 
nary, and so essentially change the whole question. 
The responses and decrees of the old law in reference 
to this faculty, then, concern delegated and not ordi- 
nary jurisdiction. Hence, the canons in question have 
to be taken on their own merits. But canon 1043, -in 
reference to the cautiones contains an ablative abso- 
lute clause praestitis consuetis cautiombus, which 
does not necessarily involve a condition that is re- 
quired absolutely for validity.** Before the Code, in 
the case of a general law, the force of such a clause 
was vigorously disputed. The common opinion was 
that it did not pertain to validity, unless this was de- 
manded by the very nature of things. Hence, a du- 


biwm juris would exist before the Code in regard to the 


irritating force of such a clause in a general law. But 
after the Code, there is hardly room for doubt, as canon 
15 expressly states: ‘‘Leges, etiam irritantes et in- 
habilitantes, in dubio juris non urgent . . . ,’’ and 
24 S.C. S. Off., April 12, 1899, Coll., no. 2042. 
25 Ad 1, AAS, IV, p. 442. 


26 Cfr. Vermeersch-Creusen, I, no. 114, citing D’Annibale, I, 76; 
III, 500 et 502. 





SO ee ee a a 


MATRIMONY 44a" 


canon 11: ‘‘Irritantes aut inhabilitantes eae tantum 
leges habendae sunt, quibus aut actum esse nullum aut 
inhabilem esse personam expresse vel aequivalenter 
statuitur.’’? But it is not clear from the ablative ab- 
solute clause used in the present instance that the ex- 
ercise of the power of dispensing, in the absence of the 
cautiones, is null. In the very same canon (1043) an- 
other ablative absolute clause is used, remoto scandalo, 
which all agree does not pertain to the validity of the 
faculty. An argument from analogy might be drawn 
from the canons regarding rescripts, and the force of 
the clauses contained in them. Before the Code, the 
same dispute about the ablative absolute clause pre- 
vailed, but canon 39 states some of the particles re- 
quired for validity, but does not expressly include the 
disputed ablative absolute. Hence, some canonists 
have concluded that the silence is positive, and it does 
not pertain to validity, unless this is clear from the 
nature of things.” Incidentally, the same clause re- 
fers to both mixed religion, which is only a prohibiting 
impediment, and disparity of cult. 

It is clear from the nature of things that neither the 
impediments of mixed religion nor disparity of wor- 
ship derive their complete force from the divine law. 
Mixed religion is only a prohibitive impediment in the 
ecclesiastical law,?” and as we are considering the irri- 
tating force of the impediments, no further discussion 
is necessary. The very definition of disparity of wor- 
ship as found in the Code proves beyond dispute that 
the irritating force is ecclesiastical.“ Thus, it only 
exists between a person baptized in the Catholic 


96b Vermeersch-Creusen, I, no. 114; Marota, no. 284; vA oy ala 
tivo absoluto, etc., continent dumtaxat id quod jam ex ipsa natura rel, 
de qua agitur aut ex ture esset praestandum . . .” Both cite D’An- 
nibale. 


297 Canon 1060. 
28 Canon 1070. 


126 MATRIMONY 


Church, or converted from heresy or schism to it, and 
an unbaptized person, as a diriment impediment. 
But are the cautcones demanded for the valid exer- 
cise of the ordinary power of dispensing? It is quite 
clear that if the Church by positive law gave the diri- 
menting force to the impediment, it can dispense val- 
idly to this extent at least in all cases. Thus, the 
Code itself has relaxed the dirimenting force for all 
those baptized persons, leaving the divine law un- 
touched, who do not fall under the definition of dis- 
parity of worship. In the past, the power of relaxing 
the law, leaving the illiceity untouched, was tolerated 
by the Church, at least as far as the impediment of 
mixed religion is concerned. It was never denied that 
the Pope, who exercises supreme ordinary power, 
could validly dispense or relax the force of the eeclesi- 
astical law. But the nature of the power of inferiors 
in 1043 and 1044 has been changed by the Code itself 
from delegated to ordinary, which withdraws all the 
restrictions of the past, and permits of its interpreta- 
tion according to the law of the Code alone. The fact 
that in the past the Holy See in specific instances and 
requests for faculties to dispense where the cautiones 
could not be secured preferred to grant the delegated 
power of sanatio in radice does not materially affect 
the question. A sanatio from its definition implicitly 
contains a dispensation, heals the marriage from its 
inception, and operates where the renewal of consent 
is Impossible.” If the party is willing to renew his 
consent in some form for convalidation of an attempted 
marriage, or is willing to give it for the first time in a 
marriage to be contracted, a sanatio will not be neces- 
sary in the first case, and impossible in the second. 
29 Canon 1138, no. 1: ‘“Matrimonii in radice sanatio est eiusdem 
convalidatio, secumferens, praeter dispensationem vel cessationem im- 


pedimenti, dispensationem a lege de renovando consensu, et retrotract- 
ionem, per fictionem iuris, circa effectus canonicos, ad praeteritum.” 


7 


MATRIMONY a ey; 


But will this be possible without obtaining the cau- 
tiones, or where they have been refused? In other 
words, if the faculty is used in such cases, will the mar- 
riage be invalid? In the case of mixed marriages, 
where both parties are baptized, as the impediment 
itself has not dirimenting force, it is clear that the 
marriage is valid. But where the non-Catholic party 
is unbaptized? There is no expressly irritating clause 
contained in canon 1048, so that the general law will 
have to be inspected. 

The faculties granted in canons 1043 and 1044 are 
ipso jure, so that they must be exercised under the 
general law of the Code itself. Canon 1061, concern- 
ing the cautiones, reads somewhat as follows: 


‘‘No. 1. The Church grants no dispensation 
from the impediment of mixed religion, unless: 

‘‘1,. There be just and grave causes; 

‘2, The non-Catholic party give guarantees 
that the danger of perversion for the 
Catholic party will be removed, and both 
parties promise that all the children will 
be baptized and brought up only in the 
Catholic faith. 

‘3. There be a moral certainty that the 
promises be fulfilled. 

‘‘No. 2. Regularly the promises should be de- 
manded in writing.’’*° 


The same canon applies to disparity of cult. The 
first condition in the first paragraph is certainly re- 
quired for validity by reason of canon 84, par. 1, which 
eoverns the action of inferiors to the Pope. The eccle- 
siastical law must not be dispensed unless there 
is a just and reasonable cause, proportionate to the 
eravity of the law dispensed from; otherwise a dis- 


30 Canon 1061. Cfr. Ayrinhac, p.c., p. 117. 
31 Canon 1071. 


128 MATRIMONY 


pensation granted by.an inferior is illicit and invalid. 
The second condition presents the real difficulty. 
Even in articulo mortis, past decrees of the Holy See 
have insisted that the cautrones should be demanded. 

The divine law demands that the Catholic party 
shall not place himself in the proximate danger of per- 
version, and the same applies to the children of such a 
marriage. It demands for the liceity, not the validity, 
of marriages with persons or non-Catholics that these 
conditions be either absent in the case or rendered re- 
mote. The probable danger of death of the non-Cath- 
olic may remove the immediate occasion of perversion 
for the Catholic party, as far as the divine law is con- 
cerned. Thus, the danger of death, and moral certain- 
ty of actual death before the use of reason, is consid- 
ered as sufficient removal of the danger of perversion, 
in the case of infants of infidels.*? But in the absence 
of the cautiones, there is danger in the case of the 
children in the future, either due to the recovery of 
non-Catholic party, or the enactments of civil law. 
Henee, if the cautiones are not obtained, which are a 
concrete determination of the conditions of the divine 
law, the marriage will be illicit. Under these cireum- 
stances, the Church, through the Pope, and those to 
whom he has conceded the power, can dispense validly 
and licitly from the dirimenting force of the impedi- 
ment of disparity of worship, leaving the obligation of 
the divine law untouched. But in such cases, past de- 
crees clearly show that the Church does not wish her 
ministers to take any active part. Under canons 1043 
and 1044, it will not be necessary for the minister to 
assist passively, as he also has power to dispense from 
the canonical form, and render the marriage valid, if 
entered into before witnesses. 


32 Canon 750, no. 1. 


ed - . 
LEE 


MATRIMONY 129 


Canon 1061, par. 1, no. 2, certainly contains no irri- 
tating clause. The.general introductory clause of the 
paragraph does not supply this defect, as it covers also 
the third condition of the same paragraph, which all 
concede does not pertain to the validity of the dispen- 
sation. But the canon itself must contain this clause, 
either expressly or equivalently.** Moreover, in the 
delegated faculties granted, usually a certainly invali- 
dating clause introduced by the particle dwmmodo is 
used.** In the wartime faculties, however, granted by 
the Consistorial Congregation, April 25, 1918, this was 
not contained, but .. . ‘‘Ordinarius prae oculis 
semper habeat regulas statutas in Codice lib. ITI, tit. 
VII, cap. 2, 3, et 4, circa impedimenta in genere et in 
specie itemque clausulas apponi solitas in matrimoniis 
cum hebraeis et mahumetanis .. .’** Thus, it calls 
special attention to two types of marriages with the 
impediment of worship, but leaves the others to the 
regulations in the Code. 

Commentators, writing after the Code, are not at 
all agreed on the force of the ablative absolute clause 
regarding the cautiones in canon 1043.*° One of great 
weight has changed his view, and declared that the 
opinion which permits the valid use of the faculty in 
1048 without them as probabilior.*” Some prefer to 
apply canon 81: Ordinaries inferior of the Roman 

33 Canon 11. 

34 E.g., Baltimore. 

35 Cfr. Cappello, De Sacraments, III, p. 258 (footnote). 

36 The cautiones are not for validity in canon 1043, Vermeersch, 
Theo. Mor., III, no. 758 (1923), who cites Pighi and Cerato in favor 
of this view; Genicot, Jnst.: Theo. Mor., II, no. 522; Cappello, De Sacrs., 
III, no. 232; Petrovits, The New Church Law on Matrimony, nos. 160, 
189. De Smet, op.c., says the cautiones are for the validity of canons 
1043 and 1044, p. 103, note 4, but applies canon 81, by which Ordinary 
can grant valid dispensation without them in such cases, no. 508, p. 36, 
note 1, no. 512. 

37 Vermeersch-Creusen, Ep. J. C., II, no. 348, formerly held the 
negative opinion in year 1922, but grants that the other opinion is 


probabilior for canon 1043 and 1044 in his Moral Theology, III, no. 758, 
in year 1923. 


130 MATRIMONY 


Pontiff cannot dispense from the general laws of the 
Church, not even in a particular case, unless this 
power has been conceded to them explicitly or implicit- 
ly, or unless the recursus to the Holy See is difficult 
and at the same time there is danger of grave danger 
in the delay, and there is question of a dispensation 
which the Holy See is accustomed to grant.* In the 
case, however, either the conditions of the divine law 
are satisfied or they are not. If the former is the case, 
as there is no certainly irritating clause in either canon 
1061 or 1048, the faculty is to receive a broad interpre- 
tation and the act of dispensing will be valid.*® If the 
latter is true in the case, no one can licitly dispense 
from the divine law, but with sufficient reason, the 
faculty will be validly exercised, and marriage valid 
but illicit. But the Church has tolerated illicit mar- 
riages in the past. The cautiones will then be ob- 
tained from the Catholic party, but the minister will 
dispense from the canonical form also, and warn the 
Catholic party. If it is a case of a marriage already 
attempted, the faculty includes convalidation, but not 
sanatio, so that nothing can be done in the absence of 
special additional faculties, unless the parties are will- 
ing to renew the consent in some form. There is no 
longer need of special indults, which permit passive 
assistance in such cases, so that the Holy Office, No- 
vember 26, 1919, responded in a general manner: 
‘‘Contrariae S. Sedis praescriptiones atque contraria 
indulta per ipsum Codicem iuris canonici abrogata 
SUN 

In the case, if the non-Catholic refuses to give the 
cautiones, which past responses declared were to be 
exigendae even in articulo mortis, obviously as he is 

38 Canon 81, cfr. De Smet, op.c., II, p. 40 (footnote). 

39 Canon 200, no. 1; cfr. canons 199, no. 1, 202. 


40 Cited by Priimmer, Manuale J. C., p. 413 (footnote), from Linger 
Quartalschrift, 1921, 249. 


MATRIMONY Mera By» 


the dying person in this thesis, offspring will have to 
exist. The fact of his dying condition, and the con- 
tinued existence of the Catholic party is a guarantee 
of the absence of perversion of the Catholic. The 
Church would in any case baptize the children in such 
circumstances. Actually the divine law may be de 
facto better fulfilled in the case than by the obtaining 
of the cautiones, the giving of which and not the fulfil- 
ment is required by canon 1061. But in all cases, the 
cautiones must be secured for liceity. If there are no 
offspring, it is hard to see how there could be a just 
and sufficient cause to exercise the faculty with the 
denial of the cautiones as the urgente mortis periculo 
removes danger of concubinage, etc., for the present. 


CONCLUSION. 


The conclusion to this study can indeed be brief. 
After all, the last moments of every dying man are 
filled with mystery and the workings of Divine 
Providence. | | 

Undoubtedly, ‘the most unsatisfactory results have 
been those concerned with the possibility of baptizing 
those who gave and can give no signs. But is not the 
entire matter more or less one of the secrets, which, if 
the dying man does not recover, remains forever hid- 
den? With great consolation, then, the writer cites a 
passage on the attitude of St. Augustine on certain 
kindred problems: 


As for the second case of simulation which con- 
cerns Baptism: conferred with the obvious end of 
amusement or mockery, St. Augustine refused to 
commit himself on the subject. Were he obliged 
to give an opinion on the value of such a Baptism, 
he would have recourse to prayer, and would 
await the true solution from Divine revelation.’ 
‘‘Pivinum judicium per alicujus revelationis or- 
aculum, concordi oratione et impensis supplici de- 
votione gemitibus implorandum esse censerem.”’ 
The Bishop of Hippo was convinced that God com- 
municates Divine truth by a sort of direct revela- 
tion, whenever the doctors of the Church need it 
and ask it in fervent prayer. It was by a revela- 
tion of this kind that he was taught when he 
wrote towards the year 397 to Simplicianus, 
Bishop of Milan, that the beginning of faith is a 
oift of grace; up till then he thought otherwise.’ 
And did not St. Thomas Aquinas himself declare 
that he learned directly from God through prayer 
much more than by all his studies’’?* 


3 Pourrat, Theology of the Sacraments, p. 368-369, who cites 
(1) Epist. clxxiii, no. 103, and (2) De praedestin, no. 8. 


132 


Se nl 


CONCLUSION 133 


Lest, then, in searching too eagerly the mysteries of 
Divine Providence, as the Apostles sought to know 
the time of the Last Day, one finds the indications of 
the destruction of Jerusalem intertwined, the final so- 
lution of this difficult problem is left where it always 
was—a mystery of Divine Providence. 












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APUD UNIVERSITATEM 
CATHOLICAM AMERICAE 


CONSEQUENDUM 
PUBLICE PROPUGNABIT 
IACOBUS IGNATIUS KING 
SACERDOS ARCHIDIOECESIS SANCTI PAULI 


JURIS CANONICI LICENTIATUS 


HORA XI A. M. DIE XXVII MAII A. D. MCMXXIV. 


Universiras CarHouica AMERICEH 
Wasuinetoni, D. C. 
Facuuttas Juris CANONICI 
1923-1924 
No. 23. 


XII. 
XIV. 
XV. 


XVI. 


XVII. 
XVIII. 
Ore 


XX. 
XXI. 
XXII. 
XXITT, 
chy: 


. Sources of International Law. 

. Recognition of a State. 

. General Rights and Obligations of States. 
. Protectorates, Suzerainties, Spheres of In- 


fluence, Mandates. 


. Immunities and Privileges of Diplomatic 


Agents. 


. Piracy. 

. Jurisdiction over Vessels. 

. The Monroe Doctrine. 

. Extradition. 

. Consuls. 

. De Erroribus quoad Formam Regiminis 


Keclesiae. 


. De Cessatione Protestatis Romani Ponti- 


ficis. 

De Jure Gladu. 

De Potestate Magisteriali. 

An Potestas Jurisdictionis episcopalis sit 
immediate a deo? 

De Natura et Limitibus Jurisdictionis epis- 
copalis. 

De Ratione et Natura Parochiatus. 

De Jure Civili quoad Matrimonium. 

De Relatione Ecclesiae ad Principium 
Libertatis religiosae. 

De Concordatis in genere. 

Canones 5-7. 

Canones 12-14. 

Canones 36-37. 

Canones 80-86. 


XXV. 
XXVI. 
XXVIII. 
XXVIII. 
XXIX, 

. Canones 
. Canones 
. Canones 
. Canones 
. Canones 
. Canones 
XXXVI. 
XXXVII. 
XoRVdd 
XXXIX. 
XL. 

XL. 
XLII. 
XLII. 
XLIV. 
XLV. 
XLVI. 
XLVIL. 
XLVIII. 
XLIX., 

. Canones 
. Canones 
. Canones 
. Canones 
. Canones 
. Canones 
. Canon 2314, 
. Canon 2319. 


Canones 
Canones 
Canones 


90-95. 
196-209. 
518-530. 


Canones 637-645. 
Canon 731. 


Canones 
Canones 
Canones 
Canones 
Canonesg 
Canones 
Canones 
Canones 
Canones 
Canones 


749-751. 
752, 754. 
882, 
892-900. 
940-944, 
1043-1044. 
1060-1064. 
1239-1242. 
1243-1246. 
1307-1315. 
1372-1383. 
1556-1568. 
1560. 
1561-1566. 
1586-1590. 
1648-1651. 


Canone 1654. 


Canones 
Canones 
Canones 


1679-1883. 
1690-1692. 
1701-1705. 
1742-1746. 
1756-1758. 
2241-2242. 
2252-2254, 
2286-2289. 
2312-2313. 


LVIIL. Canon 2335. 
LIX. Canon 2350. 
DX pCanonewalo. 


Vidit Sacra Facultas: 


PHILLIPPUS BERNARDINI, J.U.D., 
S.T.D., Decanus. 


HUBERTUS LUDOVICUS MOTRY, J.C.D., 
S.T.D., a Secretis. 
Vidit Rector Universitatis: 


™ THOMAS J. SHAHAN, S.T_D., J.U.L. 


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BIOGRAPHY. 


James Ignatius King was born May 13, 1895, in Bel- 
fast, Ireland. He received his college course under the 
Jesuit Fathers at St. Michael’s College, Leeds, York- 
shire, England, and seminary course at The St. Paul 
Seminary, St. Paul, Minnesota, where he was ordained 
priest by the Rt. Rev. Austin Dowling, 1922. In 1922 
he entered The Catholic University of America, Wash- 
ington, D. C., and pursued theological studies under 
the direction of Monsignor Dr. Phillipp Bernardini, 
Dr. John A. Ryan, Dr. Hubert L. Motry, Dr. Valentine 
T. Schaaf, and Dr. Fitzgerald, to all of whom he hereby 
expresses his sincere thanks. 


Hoc 


213 3536 








